THE HON’BLE SRI JUSTICE SANJAY KUMAR C.R.P.No.4934 of 2006 Date: 08.07.2010 Between: Pinjare Saibanna (died) by his LRs and 2 others … Petitioners AND Janaki Nounepatappa and 3 others … Respondents THE HON’BLE SRI JUSTICE SANJAY KUMAR C.R.P. No.4934 of 2006 ORDER: The legal representatives of the decree holder in O.S.No.66 of 1991 on the file of the Junior Civil Judge, Alur, filed E.A.No.81 of 2006 in E.P.No.38 of 1997 in O.S.No.66 of 1991 under Section 5 of the Limitation Act, 1963 seeking condonation of the delay of 2054 days in paying the stamp duty for the sale certificate. By its order dated 21.06.2006, the executing Court dismissed the said application holding that it did not have the power to condone the delay in depositing the stamp duty amount required for the sale certificate beyond the prescribed time. The scheduled property in E.P.No.38 of 1997 on the file of the Junior Civil Judge, Alur was sold in a public auction on 24.08.1999 and the sale was knocked down in favour of the decree holder who died thereafter. The judgment debtor filed an application under Order XXI Rule 90 C.P.C. in E.A.No.133 of 1999 challenging the sale, which was dismissed by the executing Court on 31.03.2006. Thereafter, when the matter came up for confirmation of sale on 10.04.2006 the legal representatives of the decree holder came to know that there was a deficit in the deposit of stamp duty for the sale certificate. The legal representatives of the deceased decree holder stated that the deficiency occurred due to miscalculation and accordingly prayed for condonation of the delay as aforesaid. Upon consideration of the relevant provisions, the executing Court came to the opinion that it was not authorized by law to condone such delay in the deposit of the stamp duty required for the sale certificate once the prescribed time expired. Hence, this C.R.P. by the legal representatives of the deceased decree holder. Heard Sri R.V. Nagabushana Rao and Sri A.V. Sivaiah, learned counsel for the contesting parties. Sri R.V. Nagabushana Rao, learned counsel for the petitioners, contended that once the sale was settled, it should not be undone on trivial technicalities and the delay in the deposit of the stamp duty should not be permitted to nullify the sale. Per contra, Sri A.V. Sivaiah, learned counsel for the respondents, relying on case law, urged that the executing Court did not have the power under Order 21 Rule 85 C.P.C. to accept the stamp duty after expiry of the prescribed time. He accordingly sought to justify the order passed by the executing Court. Order 21 Rule 85 C.P.C., as applicable in our State, reads as under: “Time for payment in full of purchase money and of stamp for certificate of sale – The full amount of purchase money payable and the general stamp for the certificate under rule-94 or the amount required for such stamp, shall be deposited into Court by the purchaser before the court closes on the fifteenth day from the sale of the property provided that ……………………………………….” The issue presently is whether the petitioners can be permitted to deposit the amount due towards stamp duty with substantial delay. The issue is no longer res integra. It has been settled by the Supreme Court as long back as in the year 1954 in Manilal Mohanlal Shah and others v. Sardar Sayed Ahmed Mahmad and another[1] that there would be no sale in the eye of law if the amounts payable are not so paid within the prescribed time. Such lapses were said to be not just mere irregularities but were held to render the sale proceedings a complete nullity. This legal position has been reiterated thereafter by the Supreme Court in Balram v. Ilam Singh and others[2] and M/s. Shilpa Shares and Securities and others v. National Co-operative Bank Ltd., and others[3]. Closer home, a learned single Judge of this Court in J. Ramalakshmi v. M.V.R.K. Mutyalu[4] held that the depositing of stamps and, in particular, the amount equivalent to stamps into the Court should at least be initiated within the time stipulated. The learned Judge observed that once the process for making the deposit was started within the time stipulated, the fact that the remaining part of the process had taken place thereafter would not defeat the rights of the auction purchaser. This judgment is distinguishable on facts as in the present case, the process had not even been initiated and there was a long and substantial delay of 2054 days in deposit of the stamp duty. In Kudiyala Ramana v. Vattikolla Somaraju and others[5] a learned single Judge of this Court held that failure to comply with the provisions of Order 21 Rule 85 C.P.C. would make the sale ineffective. The learned Judge was of the opinion that once the auction purchaser fails to deposit the amount towards stamp duty for the sale certificate within 15 days from the sale, the sale became a nullity and the Court was not competent to enlarge the time for such deposit. The same legal position was reiterated in Dasarla Koteswaramma v. Alla Venkayamma[6] wherein a learned single Judge of this Court observed that failure to deposit the amount under Rule 85 of Order 21 CPC automatically entails cancellation of the sale. In the light of this settled legal position, the order passed by the executing Court refusing to condone the delay in depositing the stamp duty amount cannot be said to be illegal. The Civil Revision Petition is accordingly dismissed. The interim stay granted on 03.11.2006 stands vacated. The executing Court shall take necessary further steps in the light of the nullification of the sale held on 24.08.2009 owing to the failure of the auction purchaser in complying with the procedure in Order 21 Rule 85 C.P.C. The amount deposited by the decree holder towards the purchase money for the said sale shall be refunded to the petitioners. In the circumstances, there shall be no order as to costs. __________________ SANJAY KUMAR, J Date: 08.07.2010 Isn [1] AIR 1954 SC 349 [2] 1996(5) SCC 705 [3] AIR 2007 SC 1874 [4] 2004 (5) ALD 284 [5] 2003 (2) ALD 93 [6] 2009 (6) ALT 249