Himachal Pradesh High CourtM/S United Electronics (India) Ltd. And ... vs Rt on 8 November, 2016Bench:Chief Justice,Tarlok Singh ChauhanIN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA




                                                              .OSA No.               8 of 2015





                                           Reserved on: 22.10.2016

                                           Decided on: 08.11.2016





    M/s United Electronics (India) Ltd. and another ...Appellants.of
                                 Versus
                   rt
    Ajay Kumar and others                                 ...Respondents.Coram
    The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice.The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.Whether approved for reporting? Yes.For the appellants:      Mr. B.C. Negi, Senior Advocate, with





                             Mr. Raj Negi, Advocate.For the respondents:     Mr.   Ramakant       Sharma,    Senior





                             Advocate, with Mr. Basant Thakur,
                             Advocate, for respondent No. 1.Mr. Ajay Kumar Dhiman, Advocate, vice
                             Mr. Balwant Kukreja, Advocate, for
                             respondent No. 2.Nemo for other respondents.::: Downloaded on - 15/04/2017 21:31:09 :::HCHP2Mansoor Ahmad Mir, Chief Justice.This appeal is directed against orders, dated 27 th




                                                                 .March, 2015, 28th April, 2015, and 27th July, 2015, passed by the

    learned Single Judge in Execution Petition No. 1 of 2005, tilted





    as H.P. State Industrial Development Corporation versus M/s




                                        of
    United Electronics (India) Ltd. and others (for short "the

    impugned orders").2.
                     rt
                   At the very outset, we deem it proper to record

    herein that the appellants have filed this appeal while invoking

    the jurisdiction of this Court in terms of Order 43 Rule 1 (j)of the

    Code of Civil Procedure(for short "CPC") and is not an appeal as



    per the mandate ofSection 96of the CPC, as recorded in the




    cause title.3.             Learned counsel for the parties argued the case at

    length.4.             It is profitable to give a brief resume of the facts of

    the case, which have given birth to the instant appeal.5.             Decree Holder­Himachal Pradesh State Industrial

    Development Corporation (for short "HPSIDC") earned decree in

    Civil Suit No. 8 of 1999, titled as Himachal Pradesh State::: Downloaded on - 15/04/2017 21:31:09 :::HCHP3Industrial Development Corporation Limited versus M/s United

    Electronics (India) Ltd. and others, was constrained to file




                                                               .Execution Petition in the year 2004, i.e. on 31st December, 2004.Notice was issued on 4th January, 2005, remained on the dockets





    of the Court without service and ultimately OMP No. 138 of 2008

    was filed by the Decree Holder­HPSIDC on 9 th April, 2008 for




                                      of
    attachment of the immovable property of Judgment Debtor No. 1,

    i.e. M/s United Electronics (India) Ltd. (for short "Company"), as
                   rt
    described in para 3 of the said application. Thereafter, another

    application, being OMP No. 451 of 2008, was filed by the Decree

    Holder­HPSIDC under Order 21 Rule 54 read withSection 151CPC. Warrant of attachment was ordered to be issued vide order




    dated 17th September, 2008.6.          OMP No. 315 of 2009 came to be filed by the Decree

    Holder­HPSIDC under Order 21 Rules 66 and 67CPCread withSection 151CPC on 9th July, 2009, for issuing advertisement qua

    sale of the attached property. The learned Single Judge directed

    to issue the proclamation vide order, dated 15 th July, 2009.7.          The Judgment Debtor­Company moved OMP No. 413

    of 2009 under Order 21 Rules 58 and 59CPCread withSection

    151CPC on 18th August, 2009, for settling the process of::: Downloaded on - 15/04/2017 21:31:09 :::HCHP4auctioning the property afresh. It is apt to reproduce the relief

    sought for in the said application herein:."That it would be in the interest of justice
                        and fairness of law to allow the present
                        application and settle the process of
                        auctioning of the property afresh so that





                        the Judgment Debtor is able to once and
                        for all settle the alleged dues of the HPFC
                        and PNB the other two secured creditors."of8.          The learned Single Judge, vide order, dated 25 th

    August, 2009, passed in OMP No. 413 of 2009 (supra), ordered
                   rt
    that sale of proclamation would disclose the value of the property

    as assessed by the Decree Holder and details of all encumbrances

    attached thereto. It was also provided that the sale would be



    subject to confirmation by the Court.9.          The Decree Holder­HPSIDC filed reply to the said




    application, i.e. OMP No. 413 of 2009, on 2 nd September, 2009.Rejoinder thereto came to be field on 9th October, 2009.                  The





    application was disposed of vide order, dated 22 nd October, 2009,

    by providing that no further orders were required to be passed in

    view of order, dated 25th August, 2009.10.         On 8th July, 2011, the Decree Holder­HPSIDC moved

    OMP No. 241 of 2011 seeking permission of the Court to carry

    out fresh evaluation of the assets, which was allowed by the::: Downloaded on - 15/04/2017 21:31:09 :::HCHP5learned Single Judge on 23rd August, 2011, and a direction was

    issued to the Decree Holder­HPSIDC to carry out fresh




                                                                .evaluation of the movable and immovable property.                     Fresh

    valuation report was ordered to be taken on record vide order,





    dated 19th October, 2011 in OMP No. 373 of 2011, with a further

    direction to sell the attached property by way of public auction




                                       of
    after drawing the proclamation of sale. The Collector, Solan, was

    directed to ensure that an officer not below the rank of Tehsildar
                   rt
    would conduct the auction. It is profitable to reproduce relevant

    portion of order, dated 19th October, 2011, herein:"Attachment of the property was ordered


                        on 31.08.2007. The attached property, i.e.
                        the immovable property comprised in Plots
                        No. 12, 13, 20, 21, 22, 23 and 24,
                        Industrial Area, Barotiwala, District




                        Solan, Himachal Pradesh, alongwith
                        building and machinery standing thereon





                        be sold by way of public auction.
                        Proclamation of sale be published in the
                        Tribune (Chandigarh Edition), Amar





                        Ujala (Chandigarh Edition) and the
                        Economic     Times      (Delhi    Edition).
                        Proclamation of sale be drawn up by the
                        Registry and proclamation be published
                        on or before 19th December, 2011, and
                        sale shall take place on 7th January,
                        2012. The Collector, Solan, shall ensure
                        that an officer not below the rank of
                        Tehsildar shall conduct the auction.As per the valuation report, the total value
                        of the land is ₹ 356.63 lacs and the value::: Downloaded on - 15/04/2017 21:31:09 :::HCHP6of the building is ₹ 18.19 lacs, i.e. the total
                        value of the property is ₹ 374.92 lacs. It
                        is, however, made clear that there is no
                        upset price fixed in the auction, though,




                                                                 .according to the Decree Holder, the





                        distress value of the total property is
                        ₹ 208.02 lacs. The HPSIDC shall take
                        necessary     steps   and     furnish       the





                        proclamation charges within two weeks
                        from today."11.         The said order was not complied with and on 19 th




                                        of
    December, 2011, fresh direction was issued for proclamation of

    the sale and the sale of the property.rt12.         The Decree Holder­HPSIDC filed OMP No. 62 of

    2012 on 21st March, 2012, for the survey, zoning and planning of

    the property on the ground that no bids were received in spite of



    wide publicity and to explore the possibility of selling the




    property in question at higher price.            It is worthwhile to





    reproduce the relief sought in the said application herein:"In view of submissions made above the





                        application may kindly be allowed and
                        permission may kindly be granted to
                        Decree Holder Corporation to get the
                        survey, zoning and planning of the
                        property done and direction may also be
                        issued to the Judgement Debtors to extend
                        necessary cooperation in the matter."13.         Vide order, dated 2nd April, 2012, OMP No. 62 of

    2012 was granted with a direction to the Decree Holder­HPSIDC::: Downloaded on - 15/04/2017 21:31:09 :::HCHP7to go for the survey, zoning and planning of the property and the

    Judgment Debtors were also directed to extend necessary




                                                                 .cooperation in view of the fact that nobody turned up for auction.Order, dated 2nd April, 2012, reads as under:"Report of the Collector received. As per
                         report nobody turned up for auction.of
                         The present application has been moved
                         for seeking permission to allow the decree
                         holder to get survey, zoning and planning
                     rt  of the property.      Further for seeking
                         direction to the JDs to extend necessary
                         cooperation in the matter. In view of the
                         fact that no one had turned up at the time

                         of auction, decree holder is also interested
                         to take part in the ensuing bid as such it
                         intends to survey the property for the
                         purpose of bid. As such, the application is


                         allowed.     Decree holder may get the
                         survey, zoning and planning of the
                         property done and JDs shall extend
                         necessary cooperation in the matter. The




                         application stands disposed of. Dasti
                         copy. List on 24.5.2012."14.         Thereafter, time was sought on various dates/





    hearings to comply with order, dated 2nd April, 2012, quoted

    hereinabove.15.         On 1st May, 2013, an application, being OMP No. 190

    of 2013, underSection 151CPC came to be filed by the Decree

    Holder­HPSIDC for fixation of the date for auction of the

    attached property.::: Downloaded on - 15/04/2017 21:31:09 :::HCHP816.         The Judgment Debtor­Company filed reply to the

    said application on 14th May, 2013. Rejoinder was filed on 13th




                                                                 .June, 2013, and the application was disposed of vide order, dated

    3rd July, 2013, the operative portion of which reads as under:"In view of the above, the application is
                        allowed and the attached property, as
                        aforesaid, is ordered to be put to sale as




                                       of
                        per schedule of sale to be fixed by the
                        Addl. Registrar (Judicial) and intimated
                        to the contesting parties through their
                   rt   learned counsel, on taking requisite steps
                        by the petitioner/DH within two weeks
                        from today. It is further ordered that in
                        order to identify the aforesaid Plot No. 42,

                        with a view to segregate the same from the
                        attached property, a panel of local
                        commissioners comprising of Ms. Charu
                        Gupta and Ms. Meena Thakur, Advocates,


                        is appointed, who shall carry out the
                        requisite demarcation before the attached
                        property is put to sale, on a date to be fixed




                        mutually in consultation with the learned
                        counsel for the contesting parties. In this
                        exercise, the panel of local commissioners





                        would be assisted by the Tehsildar,
                        Barotiwala alongwith the field revenue
                        staff and the Executive Officer, Baddi





                        Barotiwala       Nalagarh       Development
                        Agency (BBNDA), Baddi at Jharmajri, or
                        any other senior officer appointed by him
                        for this purpose, so that there is no
                        difficulty     in     identification      and
                        demarcation of the aforesaid Plot No. 42.
                        Fee of the Members of the panel of local
                        commissioners is fixed at ₹ 25,000/­
                        (rupees twenty five thousand only) each,
                        inclusive of conveyance charges etc., which
                        shall be payable by the contesting
                        respondents/JDs No. 1, 3 and 5. The::: Downloaded on - 15/04/2017 21:31:09 :::HCHP9panel of local commissioners shall submit
                         their report to this court within 15 days
                         from execution of the Commission, under
                         intimation to the parties through their




                                                                 .learned counsel.     The parties through





                         their      learned     counsel/authorized
                         representatives shall be free to assist the
                         panel of local commissioners in execution





                         of the Commission. Let copies of this
                         order be sent by the Registry to the
                         Tehsildar, Barotiwala and Executive




                                        of
                         Officer, BBNDA for information and
                         compliance.The application stands disposed of in the
                   rt    above terms."17.          The warrant of sale after execution was received

    alongwith the report of the Local Commissioner and six bank

    drafts, the mention of which has been made in order, dated 3 rd



    October, 2013.    It is apt to reproduce the relevant portion of

    order, dated 3rd October, 2013, herein:"As per report of the Registry, warrant of





                         sale has been received back after execution
                         along with the report of the Local
                         Commissioner and six bank drafts,





                         amounting to ₹ 1,13,65,000/­ (one crore,
                         thirteen lacs, sixty five thousand only),
                         being the sale proceeds, which be invested
                         by the Registry in a Fixed Deposit on
                         usual terms..........."18.          On the request of the learned counsel for the parties,

    the matter was ordered to be listed on 7 th November, 2013, with a

    direction to the parties to file objections against the sale, if any.::: Downloaded on - 15/04/2017 21:31:09 :::HCHP1019.         OMP No. 4266 of 2013, filed on 24 th October, 2013,

    under Order 21 Rules 58 and 59CPCread withSection 151CPC,




                                                                .are, in fact, objections to the sale filed by the Judgment Debtors­

    Company.     We deem it proper to reproduce para 8 of the





    application/objections herein:"8. That it would be in the interest of




                                       of
                        justice and fairness of law to allow the
                        present application and settle the process
                        of auctioning of the property afresh so that
                   rt   the Judgment Debtor is able to once and
                        for all settle the alleged dues of the HPFC
                        and PNB the other two secured creditors."20.         The Decree Holder­HPSIDC filed reply to the said

    application/objections on 26th November, 2013.              It is apt to



    reproduce para 8 of the reply herein:"8. In reply to para 8 is submitted that the




                        JD's may be directed to produce better
                        buyer as earlier the property was





                        auctioned more than 9 times but no bids
                        were received."21.         Thereafter, on 12th December, 2013, the auction

    purchaser filed OMP No. 4341 of 2013 under Order 21 Rules 94

    and 95CPCread withSection 151CPC for issuance of sale

    certificate after confirmation of sale. Parties were directed to file

    reply vide order, dated 18th December, 2013.                    Both the

    applications, i.e. OMP No. 4266 of 2013 and 4341 of 2013, came::: Downloaded on - 15/04/2017 21:31:09 :::HCHP11up for consideration on 8th January, 2014, were ordered to be

    listed on 19th March, 2014..22.         The Execution Petition was ordered to be listed for

    settlement on 23rd April, 2014, in view of the agreement arrived





    at between the parties, as is recorded in order, dated 19 th March,

    2014.   The case was adjourned on 23rd April, 2014, 20th May,




                                        of
    2014, 23rd June, 2014 and 14th July, 2014, for settlement.Thereafter, on 13th August, 2014, the Judgment Debtors­
                   rt
    Company moved OMP No. 349 of 2014 underSection 151CPC for

    settlement. It is apt to reproduce the relief sought in the said

    application herein:"It is, therefore, respectfully prayed that
                          the present application be allowed and the
                          next documents be taken on record and




                          appropriate orders may kindly be passed
                          by this honourable High Court, keeping in





                          view the facts and circumstances of the
                          matter and direct the Judgement
                          Holder/Corporation to settle the dispute





                          under one time settlement, keeping in view
                          the precedence on this issue.b. It is humbly further prayed that any
                          other direction or order may kindly be
                          issued by this Hon'ble High Court keeping
                          with the orders passed on 3rd of July 2013
                          on account of the legal implications of the
                          same."::: Downloaded on - 15/04/2017 21:31:09 :::HCHP1223.         On 22nd October, 2014, a letter was produced before

    the learned Single Judge by the learned counsel for the Decree




                                                              .Holder­HPSIDC, in terms of which the Judgment Debtors were

    called upon for discussion qua one time settlement.                   The





    Judgment Debtors were directed to attend the office of the Decree

    Holder­ HPSIDC during the course of that day with a further




                                     of
    direction to the Decree Holder­ HPSIDC to file objections in case

    the negotiation was not acceptable and the matter was ordered to
                   rt
    be posted on 19th November, 2014.24.         The perusal of order, dated 19th November, 2014,

    does disclose that the Judgment Debtors failed to comply with



    the directions made by the learned Single Judge vide order,




    dated 22nd October, 2014, and the Judgment Debtors were





    directed to deposit the outstanding decretal amount within three

    weeks, failing which the Decree Holder­ HPSIDC was directed to





    take appropriate steps including qua detention of the Judgment

    Debtors in civil imprisonment. It is profitable to reproduce order,

    dated 19th November, 2014, herein:"OMP No. 349 of 2014The affidavit filed on behalf of the
                        petitioner­DH reveals that consequent
                        upon the order passed on the previous::: Downloaded on - 15/04/2017 21:31:09 :::HCHP13date, the authorized representatives of
                         JDs, present in the Court on the previous
                         date, did not visit the office of the DH as
                         directed by this Court. It being so, JDs to




                                                                 .deposit the outstanding decretal amount





                         within three weeks, failing which the
                         petitioner­DH to take appropriate steps, in
                         accordance with law, including qua





                         detention    of    the    JDs      in  civil
                         imprisonment. List on 15th December,
                         2014."of25.         The Judgment Debtors failed to deposit the decretal

    amount, but, a statement was made by the learned counsel for
                  rt
    the Judgment Debtors before the Court on 15 th December, 2014,

    that they intend to settle the matter. The matter was referred

    for mediation, which failed, as has been recorded in order, dated



    13th March, 2015. In the said order, it has also been recorded

    that the attached property stood already sold in an open auction




    for the consideration of ₹ 1,13,65,000/­ and the parties were





    directed to produce a better buyer, who would be ready and





    willing to purchase the attached property in a sum over and

    above the one in which the same had been purchased by the

    auction purchaser.26.         In terms of order, dated 27th March, 2015 (impugned

    order­I), Decree Holder and Judgment Debtors had not filed the

    objections to the sale, but had sought one more opportunity to::: Downloaded on - 15/04/2017 21:31:09 :::HCHP14find out better buyer(s), if any, available, was granted with the

    command that in case the parties fail to do so, the sale of the




                                                                .property shall stand confirmed automatically in favour of the

    auction purchaser without reference to the Court and the matter





    was posted for 28th April, 2015. Order, dated 28th April, 2015,

    (impugned order­II) provides that the Decree Holder as well as




                                       of
    the Judgment Debtors failed to produce the better buyer and the

    execution petition was ordered to be closed in terms of order,
                    rt
    dated 27th March, 2015.27.           Thereafter, on 26th May, 2015, Judgment Debtors

    filed OMP No. 156 of 2015 underSection 151CPC for recalling



    orders, dated 27th March, 2015 and 28th April, 2015, which came




    to be dismissed vide order, dated 27 th July, 2015 (impugned





    order­III).28.           Being dissatisfied, the Judgment Debtors have filed





    the instant appeal thereby calling in question the impugned

    orders, on the grounds taken in the memo of the appeal.29.           Learned   counsel    for   the     Judgment         Debtors­

    appellants was asked to justify the maintainability of the appeal.It was argued that the impugned orders have been passed by the

    learned Single Judge on the applications in terms of Order 21::: Downloaded on - 15/04/2017 21:31:09 :::HCHP15Rule 92 CPC, thus, are appealable in terms of Order 43 Rule 1 (j)CPC..30.         Learned counsel for the respondents argued that the

    impugned orders do not fall within the scope and ambit of Order





    43 Rule 1 (j)CPC.       Further argued that the appeal is not

    maintainable, the Judgment Debtors are caught by law of waiver




                                          of
    and have virtually objected to the sale proceedings.31.         It is profitable to reproduceOrder 21 Rule 92 CPCrt
    herein:"ORDER XXI

                       EXECUTION              OF      DECREES          AND


                       ORDERS

                       .................92. Sale when to become absolute or
                       be set aside. ­ (1) Where no application is





                       made under rule 89, rule 90 or rule 91, or
                       where such application is made and
                       disallowed, the Court shall make an order





                       confirming the sale, and thereupon the
                       sale shall become absolute:Provided that, where any property is sold
                       in execution of a decree pending the final
                       disposal of any claim to, or any objection
                       to the attachment of, such property, the
                       Court shall not confirm such sale until the
                       final disposal of such claim or objection.(2) Where such application is made and
                       allowed, and where, in the case of an::: Downloaded on - 15/04/2017 21:31:09 :::HCHP16application under rule 89, the deposit
         required by that rule is made within sixty
         days from the date of sale, or in cases
         where the amount deposited under rule 89




                                                  .is found to be deficient owing to any





         clerical or arithmetical mistake on the
         part of the depositor and such deficiency
         has been made good within such time as





         may be fixed by the Court, the Court shall
         make an order setting aside the sale:Provided that no order shall be made




                        of
         unless notice of the application has been
         given to all persons affected thereby:Provided further that the deposit under
          rt
         this sub­rule may be made within sixty
         days in all such cases where the period of

         thirty days, within which the deposit had
         to be made, has not expired before the
         commencementof the Code of Civil
         Procedure(Amendment) Act, 2002.(3) No suit to set aside an order made
         under this rule shall be brought by any
         person against whom such order is made.(4) Where a third party challenges the
         judgment­debtor's title by filing a suit





         against the auction­purchaser, the decree­
         holder and the judgment­debtor shall be
         necessary parties to the suit.(5) If the suit referred to in sub­rule (4) is
         decreed, the Court shall direct the decree­
         holder to refund the money to the auction­
         purchaser, and where such an order is
         passed the execution proceeding in which
         the sale had been held shall, unless the
         Court otherwise directs, be revived at the
         stage at which the sale was ordered."::: Downloaded on - 15/04/2017 21:31:09 :::HCHP1732.         The said provision of law mandates that when the

    application is not made under Rules 89, 90 or 91CPCor when




                                                              .such application is made and disallowed, the Court shall make

    an order confirming the sale and thereupon the sale becomes





    absolute.33.         The order must contain the following ingredients:of(i) that the sale can be made absolute

                   rt  when no application under Rules 89, 90
                       or 91 CPC has been filed; or(ii) when such application is made and
                       disallowed; and the sale has to be
                       confirmed.34.         As discussed hereinabove, the Judgment Debtors,

    though, had moved an application, being OMP No. 413 of 2009,




    for settling the process of auction afresh, which was not granted,





    but the sale was ordered to be kept subject to the confirmation by





    the Court, vide order, dated 22nd October, 2009. The said order

    has not been questioned.        Thus, the Judgment Debtors are

    estopped from questioning the process of attachment and auction

    of the property.35.         The Judgment Debtors have also not questioned the

    orders made by the learned Single Judge on the applications::: Downloaded on - 15/04/2017 21:31:09 :::HCHP18moved by the Decree Holder­HPSIDC, the details of which are

    given hereinabove, thus, cannot now question the process of




                                                               .attachment and auction of the property.36.         OMP No. 4266 of 2013 filed by the Judgment





    Debtors, are, in fact, objections to the sale, but the same have not

    been pressed by them by seeking adjournment for settlement and




                                      of
    obtaining best buyer, i.e. a buyer, who would be ready to pay the

    price over and above the amount paid by the auction purchaser,
                   rt
    is suggestive of the fact that the Judgment Debtors have not

    questioned the process of attachment or sale/auction on any

    grounds contained inOrder 21 Rule 90 CPCor any other Rule.Thus, the Judgment Debtors are precluded from questioning the




    impugned orders.37.         Order, dated 27th March, 2015 (impugned order­I) is

    only an order of confirmation of sale.          This order nowhere





    discloses that any application was made and it was disallowed,

    thus, the same does not fall within the scope and ambit ofOrder

    21 Rule 92 CPCand is not appealable.38.         It is profitable to record herein that the Judgment

    Debtors did not question order, dated 27th March, 2015, though it::: Downloaded on - 15/04/2017 21:31:09 :::HCHP19was a default order. They failed to take steps in terms of order,

    dated 27th March, 2015, and order, dated 28th April, 2015




                                                             .(impugned order­II), came to be passed by the learned Single

    Judge in terms of which the Execution Petition was disposed of





    as party satisfied. In fact, the confirmation order has been made

    in terms of order, dated 27th March, 2015.of39.         Order, dated 27th July, 2015 (impugned order­III), in

    terms of which OMP No. 156 of 2015 came to be dismissed, is not
                  rt
    an order of review. No review petition was filed. The application

    was filed underSection 151CPC for re­calling orders, dated 27 th

    March, 2015 and 28th April, 2015.40.         We wonder when the remedy of review was




    available, why application for re­calling the orders was made.The dismissal of such application does not fall within the ambit

    and scope ofOrder 21 Rule 92 CPC.41.         Our this view is fortified by the judgment rendered

    by the High Court of Madhya Pradesh in the case titled asGopilal and another versus Sitaram and others, reported in

    AIR 1968 Madhya Pradesh 196. It is apt to reproduce paras 6

    and 7 of the judgment herein:::: Downloaded on - 15/04/2017 21:31:09 :::HCHP20"6. No appeal lies under Order 43, Rule
         1(j) from an order dismissing an
         application under Order 21, Rule 90 or an
         order dismissing an application for




                                                 .restoring the application under Order 21,





         Rule 90. Under Order 43, Rule 1(j) an
         appeal lies from an order under Rule 92 of
         Order 21 "setting aside or refusing to set





         aside a sale". Now, when no application is
         made under Order 21, Rule 90 or where
         such an application is made and




                        of
         disallowed, the Court is required to make
         an order confirming the sale. If the
         application made is allowed, then the
         Court has to make an order setting aside
         the sale. When no application is made
          rt
         under Order 21, Rule 90, there is no
         question of appeal against an order

         confirming the sale. Clause (j) of Order 43,
         Rule 1 does not provide for an appeal
         against an order confirming the sale.
         Under that clause, an appeal lies against


         an order under Order 21, Rule 92 setting
         aside or refusing to set aside a sale. When
         an application under Order 21, Rule 90 is
         made, and is dismissed for default or is




         not pressed by the applicant, it may be
         taken for the purpose of Rule 92 of Order





         21 that it has been disallowed and the
         result of disallowing is that the sale is
         confirmed But it cannot be held that when





         the application is dismissed for default of
         appearance or when it is not pressed then
         there is a refusal on the part of the Court
         to set aside the sale The word "refusal"means "a denial or rejection of something
         demanded or offered" There can be no
         "refusal" unless there is a request or
         demand When, an application under
         Order 21. Rule 90 is dismissed for default
         or when it is not pressed, there is no
         demand on the part of the person applying
         for setting aside the sale and the Court is::: Downloaded on - 15/04/2017 21:31:09 :::HCHP21not required to consider whether the sale
         should be set aside or not. Thus, when an
         application under Order 21, Rule 90 is
         dismissed for default of appearance and




                                                 .the sale is confirmed, there is no refusal to





         set aside the sale and such an order is not
         appealable under Order 43, Rule 1(j). A
         fortiori,   an    order    dismissing     an





         application for restoring the application
         under Order 21, Rule 90 dismissed for
         default of appearance is also not




                        of
         appealable.7. On the question whether an appeal lies
         from order dismissing an application
         under Order 21, Rule 90 for default or
          rt
         from an order dismissing an application
         for restoring the application under Order

         21, Rule 90, the decisions are conflicting.InKali Kanta Chuckerbutty v. Shyam
         Lal, AIR 1917 Cal 815(2) it has been held
         that the language of Order 43, Rule 1(j) is
         wide enough to cover a case of an



         application to have a sale set aside
         dismissed for default. The reasoning given
         in this case was that the effect of such an




         order is to confirm the sale under Rule 92.
         But, as pointed out earlier, under Clause(j) of Order 43, Rule 1, an appeal lies
         against an order refusing to set aside a
         sale and not against an order confirming





         the sale. This decision was followed inNarendra Nath v. Rakhal Das, AIR 1925
         Cal 510 where also it was ruled that the
         effect of the dismissal of an application
         under Rule 90 is to confirm the sale under
         Rule 92 and hence an appeal lies against
         the order.But in a later case, namely,Basaratulla v. Reazuddin, AIR 1926 Cal
         773, it was held that an order of dismissal
         for default is not a confirmation of the sale
         and does not preclude the party from
         making a fresh application and that such::: Downloaded on - 15/04/2017 21:31:09 :::HCHP22an order is not appealable under Order
         43, Rule 1(j). In that case Page J. observed
         that :­­




                                                 .". . . . .in dismissing the application





           for default when neither party
           appears on the case being called for
           hearing, the Court does not refuse to





           set aside the sale, but in the absence
           of the parties refuses to consider
           whether the sale should be set aside
           or not."of
         Page J. however, reached the conclusion inBasanta Kumar v. Khirode Chandra, AIR
         1928 Cal 25 that where a person applies
          rt
         under Order 21. Rule 90 but the
         application is dismissed for his non­

         appearance and the opposite party is
         present and ready to contest, the order
         dismissing the application is an order
         under Order 43. Rule 1(j) and is, therefore
         appealable To us it seems that in principle



         there is no distinction between an order
         passed on an application under Order 21,
         Rule 90 dismissing it for default for non­




         appearance if one party and an order
         dismissing it for non­appearance of both





         the parties.The decision in AIR 1926 Cal
         773 (supra) was not followed by the
         Calcutta High Court inAnsarali v. Bhim





         Sankar, AIR 1929 Cal 407(2). In that case
         it was held that when an application
         under Order 21. Rule 90 is dismissed for
         default, whether for non­appearance of one
         or for non­appearance of both the parties,
         it is disallowed under Rule 92 and that it
         is the disallowing of the application under
         Order 21, Rule 90 which corresponds to
         the order refusing to set aside a sale
         within the meaning of Order 43, Rule 1(j),
         and, therefore, such an order is
         appealable. In our judgment, the::: Downloaded on - 15/04/2017 21:31:10 :::HCHP23expression ''where such an application is
         made and disallowed" occurring in Rule
         92 means that where such an application
         is made and rejected. But it is not every




                                                  .order of rejection that has been made





         appealable under Order 43, Rule 1 (i) but
         only that Order of rejection by which the
         Court on a demand being made by a





         person to set aside a sale refuses to set
         aside the sale. This stands to reason as a
         party who has allowed his application to




                         of
         be rejected by default or for non­
         prosecution cannot really complain that
         the Court has refused to set aside the sale
         on a prayer being made by him. The Patna
         High Court has in Rampratap v.rt
         Triloknath, AIR 1957 Pat 465, following
         AIR 1928 Cal25 (supra) and AIR 1929 Cal

         407(2) (supra), held that an order
         dismissing an application under Order 21,
         Rule 90 for non­prosecution is appealable
         under Order 43, Rule 1(j), the reason given


         being that if the application is disposed of
         on merits and is dismissed, the result is
         that the sale is confirmed; likewise if the
         application is dismissed for non­




         prosecution, the result is the same,
         namely, that the sale is confirmed. As we





         have stated earlier, the question of
         appealability under Order 43, Rule 1(j)
         does not depend upon whether the order





         under Order 21, Rule 92 results in the
         confirmation of the sale but on the fact
         whether the order is one refusing to set
         aside the sale or setting aside the sale. It is
         not necessary to note the decisions of other
         High Courts which are in similar vein.
         The reasonings given in these decisions,
         with all respect to the learned Judges
         deciding the cases, do not appear to us to
         be reconcilable with one another. We
         would respectfully say that Page J. rightly
         observed in AIR 1926 Cal 773 (supra) that::: Downloaded on - 15/04/2017 21:31:10 :::HCHP24when an application under Order 21, Rule
                       90 is dismissed for default, the Court does
                       not refuse to set aside the sale. In our view,
                       an order dismissing an application under




                                                                .Order 21, Rule 90 for default or an order





                       dismissing an application for restoring the
                       original application under Order 21. Rule
                       90 is not appealable under Order 43. Rule





                       1 (j)."42.         The High Court of Punjab and Haryana in the case




                                      of
    titled asBakhsho versus Pakhar Singh and another,

    reported in AIR 1985 Punjab and Haryana 322, held that the
                  rt
    order passed by the executing Court confirming the sale is not

    appealable under Clause (j) ofOrder 43 Rule 1 CPCin absence of

    the objections underOrder 21 Rule 90 CPC. It is profitable to



    reproduce para 6 of the judgment herein:"6. The learned counsel for the petitioner




                       has contended that the sale in favour of
                       the auction­purchaser was confirmed by





                       the executing Court on 22­12­1983. The
                       petitioner did not file objection under S.
                       21, R. 90, as she did not come to know





                       about    the    auction    for   want    of
                       proclamation of sale in terms of O. 21 R.
                       66 of the Code. The sale in favour of the
                       auction­purchaser stood confirmed by the
                       time the petitioner came to know of it. The
                       petitioner did not approach the executing
                       Court for relief, because the sale already
                       stood confirmed. It is under these
                       circumstances that the petitioner has filed
                       the present revision wherein the prayer
                       made is that the sale by auction in favour
                       of Balbir Singh respondent be set aside for::: Downloaded on - 15/04/2017 21:31:10 :::HCHP25want of proclamation under O. 21, R. 66
                        of the Code. This contention is also
                        without any merit. The petitioner has not
                        sought the relief of getting the sale set




                                                                .aside from the executing Court so far. It is





                        incorrect that the petitioner could not seek
                        relief in this respect from the executing
                        Court, because the sale in favour of the





                        auction­purchaser stood confirmed. If the
                        petitioner had filed objections for getting
                        the sale set aside, the order passed would




                                       of
                        have been appealable under Clause (j) of
                        O. 43, R. 1 of the Code. The present
                        revision against the order of the executing
                        Court, confirming the sale in favour of the
                        auction­purchaser in the absence of
                   rt   objection under O. 21, R. 90 of the Code is
                        rather misconceived."43.In the case titled asL. Balu versus Periasami and

    others, reported in AIR 1988 Madras 114, it has been held, in



    para 7, that an order, passed underOrder 21 Rule 92 CPC,




    confirming the sale on the ground that no application to set aside





    the sale has been made, would not come within the purview of

    Order 43 Rule 1(j)CPCand would not be appealable.44.         The same principle has beenlaid down bythis Court

    in the case titled asSmt. Shanti Devi versus H.P. Financial

    Corporation and others, reported in 1997 (3) Sim. L.C. 256.It is profitable to reproduce para 3 of the judgment herein:"3. The language in the Rule 1(j) of Order
                        43, is very significant. The rule talks only::: Downloaded on - 15/04/2017 21:31:10 :::HCHP26of an order setting aside the sale or
                       refusing to set aside the sale. In this case,
                       the order refusing to set aside the sale was
                       separately passed on the application filed




                                                               .by the Appellant under Order 21, Rule 90,Code of Civil Procedure, The order has
                       become final as there is no appeal against
                       the said order by the Appellant. The





                       present appeal, which is now filed, is
                       against an order confirming the sale. That
                       is not mentioned in Rule 1(j), as set out




                                      of
                       above. This order cannot be called an
                       order setting aside or refusing to set aside
                       the sale. Hence, the appeal is not
                       maintainable."45.
                  rt
                The sale of property on low price in view of the fact

    that the Decree Holder and the Judgment Debtors failed to bring

    a best buyer, who would have paid the amount more than what


    the highest auction purchaser had paid, despite granting several

    opportunities, cannot be said to be a material irregularity and




    the objections raised by way of OMP No. 4266 of 2013, which too





    was virtually not pressed by seeking adjournment for settlement





    and obtaining best buyer, are of no consequence.46.         Keeping in view the facts of the case, the appellants­

    Judgment Debtors are caught by estoppel and waiver.47.         Our this view is fortified by the judgment rendered

    by the Privy Council in the case titled Raja Shyam Sunder

    Singh and others versus Kaluram Agarala and others,::: Downloaded on - 15/04/2017 21:31:10 :::HCHP27reported in AIR 1938 Privy Council 230, the relevant portion

    of which reads as under:."As regards the appellants' objection to the
                       sale    proclamation,     their    Lordships
                       consider that the waiver of the necessity for
                       a fresh proclamation necessarily implied a





                       waiver of objection to any defect appearing
                       on the face of the sale proclamation, as
                       appellant 1 must have been fully aware of




                                      of
                       its terms in view of his miscellaneous
                       appeal to the High Court. The facts in this
                       case are stronger against the said
                  rt   appellant than those in Girdhari Singh v.Hurdeo Narain Singh, 1876 3 IndApp 230
                       in which this Board held that the waiver
                       covered any objection to an error in the

                       statement of the Government revenue, as
                       the judgment­debtor must have had the
                       opportunity of seeing the copy affixed in the
                       Court House. This objection of the


                       appellants accordingly fails.As regards the appellants' three objections
                       to the attachment, their Lordships find it




                       unnecessary to consider the correctness of
                       the findings of the Subordinate Judge, and





                       they have not heard the respondents on
                       this question. Their Lordships do not
                       consider that the waiver of any necessity





                       for a fresh sale proclamation would imply
                       a waiver of the right to object to any of the
                       three irregularities in the attachment
                       found by the Subordinate Judge."48.In the case titled asVidya Bhan Prakash versus

    The Second Additional District Judge, Mathura and

    others, reported in AIR 1988 Allahabad 204, it has been held::: Downloaded on - 15/04/2017 21:31:10 :::HCHP28that unless there is nexus between the inadequacy of price

    fetched and the irregularity or fraud in conducting the sale, the




                                                              .sale cannot be set aside. Further held that where the inadequacy

    of price was the result of factors other than material





    irregularities or fraud, proviso toOrder 21 CPCdid not come into

    force. It is apt to reproduce paras 17 and 18 of the judgment




                                     of
    herein:rt   "17. Sri S.R. Misra, Advocate appearing
                       for the judgment­debtor, has during the
                       course of his arguments relied upon a

                       decision of the Andhra Praidesh High
                       Court in the case ofSatyanarayana Soni
                       v. State of Andhra Pradesh(1987) 2 Cur
                       CC 118. It has been held in this case that
                       unless there is nexus between the



                       inadequacy of price fetched and the,
                       irregularity or fraud in conducting the
                       sale, the sale cannot be set aside. It has




                       further been held that,





                       "Therefore, if a party, who has an interest
                       in the property sold in execution of the
                       decree is affected by such sale, he has to





                       establish on facts proved to the
                       satisfaction of the executing court that by
                       reason of irregularity or fraud he
                       sustained substantial injury and that
                       injury has been resulted on grounds of
                       material irregularity or fraud either in
                       publishing the sale proclamation or
                       conducting the sale."During the course of its judgment, the
                       Andhra Pradesh High Court has relied
                       upon the aforesaid earlier decision of its
                       own Court in Ramdasjee's case AIR 1965::: Downloaded on - 15/04/2017 21:31:10 :::HCHP29Andh Pra 334. It has held that any
                    material irregularities per se will not
                    invalidate a sale. Such irregularities will
                    have the effect of a voiding the sale only if




                                                            .the connection is established between them





                    and the inadequacy of price realised at the
                    sale". It was further held that inadequacy
                    of price proprio vigpre would not result in





                    avoiding the sales. There must be
                    correlation between the damage suffered
                    by the judgment­debtor and the material




                                   of
                    irregularity    complained     of   if   the
                    inadequacy of the price is the result of
                    factors    other    than     the   material
                    irregularities complained of the proviso to
                    Order 21 Rule 90(1) cannot come into
                rt  operation." As stated earlier the same is
                    also the view taken by the Supreme Court

                    in the case ofRadhey Shyam (AIR 1971
                    SC2337) (supra).18. On the findings recorded in the present
                    case by the courts below, the decision cited



                    on behalf of the respondents in the case of
                    Satyanarayana Soni (1987­2 Cur CC 118)
                    (Andh Pra) (supra), in my opinion does




                    support the case of the petitioner. In our
                    case, the execution court had dismissed





                    the objections of the judgment­debtor and
                    the lower appellate court had recorded a
                    finding that no substantial injury had





                    occurred to the judgment­debtor by reason
                    of irregularity or fraud contemplated by
                    the provisions of Sub­clause (2) ofOrder
                    XXI Rule 90 of the Code of Civil
                    Procedure."49.       The same principle has been laid down by the Apex

    Court in the case titled asJaswantlal Natvarlal Thakkar::: Downloaded on - 15/04/2017 21:31:10 :::HCHP30versus   Sushilaben     Manilal      Dangarwala          and      others,

    reported in AIR 1991 Supreme Court 770..50.         Keeping in view the merits of the case and the orders

    passed from time to time, the mention of which has been made





    hereinabove, we are of the opinion that the impugned orders are

    the best orders, which could have been passed by the learned




                                      of
    Single Judge.51.         Our this opinion is supported by the judgment
                  rt
    rendered by the Apex Court in the case titled asJanak Raj

    versus Gurdial Singh and another, reported in AIR 1967

    Supreme Court 608. It is apt to reproduce para 4, relevant



    portion of para 8 and para 24 of the judgment herein:"4. Before referring to the various
                       decisions cited at the Bar and noted in





                       judgment appealed from, it may be useful
                       to take into consideration n the relevant
                       provisionsof the Code of Civil Procedure.So far as sales of immovable property are
                       concerned there are some specie provisions
                       in O. XXI beginning with R. 82 and
                       ending with R. 103. If a sale had been
                       validly held, an application for setting the
                       same aside can only be made under the
                       provisions of Rr. 89 to 91 of O. XXI. As is
                       well known, R. 89 gives a judgment­debtor
                       the right to have the sale set aside on his
                       depositing in Court a sum equal to five per
                       cent of the purchase money fetched at the
                       sale besides the amount specified in the::: Downloaded on - 15/04/2017 21:31:10 :::HCHP31proclamation of sale as that for the
         recovery which the sale was ordered, less
         any amount which may, since the date of
         sale, have been received by the decree­




                                                 .holder. Under sub­r . (2) of R.92 the Court





         is obliged to make an order setting aside
         the sale if a proper application under R.
         89 is made accompanied by a deposit





         within 30 days from the date of sale. Apart
         from the provision of R. 89, the judgment­
         debtor has the right to apply to the Court




                        of
         to set aside the sale on the ground of a
         material irregularity or fraud in
         publishing or conducting it provided he
         can satisfy the Court that he has sustained
         substantial injury by reason of such
          rt
         irregularity or fraud. Under R. 91 it is
         open to the purchaser to apply to the Court

         to set aside the sale on the ground that the
         judgment­debtor had no saleable interest
         in the property sold. Rule 92 provides that
         where no application is made under any of


         the rules just now mentioned or where
         such application is made and disallowed
         the Court shall make an order confirming
         the sale and thereupon the sale shall




         become absolute. Rule 94 provides that
         where the sale of immovable property has





         become absolute, the Court must grant a
         certificate specifying the property sold and
         the name of the person who at the time of





         sale was declared to be the purchaser.
         Such certificate is to bear date the day on
         which the sale becomes absolute.Section
         65of the Code of Civil Procedure lays
         down that where immovable property is
         sold in execution of a decree and such sale
         has become absolute, the property shall be
         deemed to have vested in the purchaser
         from the time when it is sold and not from
         the time when the sale becomes absolute.
         The result is that the purchaser's title
         relates back to the date of sale and not the::: Downloaded on - 15/04/2017 21:31:10 :::HCHP32confirmation of sale. There is no provision
         inthe Code of Civil Procedureof 1908
         either under O. XXI or elsewhere which
         provides that the sale is not to be




                                                     .confirmed if it be found that the decree





         under which the sale as ordered has been
         reversed before the confirmation of sale. It
         does not seem ever to have been doubted





         that once the sale is confirmed the
         judgment­debtor is not entitled to get back
         the property even if he succeeds thereafter




                            of
         in having the decree against him reversed.
         The question is, whether the same result
         ought to follow when the reversal of the
         decree takes place before the confirmation
         of sale.rt5. .............6. ..............7. .............8. ........... Nothing has been urged before
         us which would lead us to take a contrary
         view. Under the presentCode of Civil




         Procedure, the Court is bound to confirm
         the sale and direct the grant of a
         certificate vesting the title in the purchaser





         as from the date of sale when no
         application as is referred to in R. 92 is
         made or when such application is made





         and disallowed.xxx            xxx             xxx24. For the reasons already given and the
         decisions noticed, it must be held that the
         appellant­auction purchaser was entitled
         to    a   confirmation     of    the   sale
         notwithstanding the fact that after the
         holding of the sale the decree had been set
         aside. The policy of the Legislature seems
         to be that unless a stranger auction::: Downloaded on - 15/04/2017 21:31:10 :::HCHP33purchaser is protected against the
                       vicissitudes of the fortunes of the suit,
                       sales in execution would not attract
                       customers and it would be to the detriment




                                                               .of the interest of the borrower and the





                       credition alike if sales were allowed to be
                       impugned merely because the decree was
                       ultimately set aside or modified. TheCode





                       of Civil Procedureof 1908 make ample
                       provision for the protection of the interest
                       of the judgment­debtor who feels that the




                                      of
                       decree ought not to have been passed
                       against him. On the facts of this case, it is
                       difficult to see why the judgment debtor
                       did not take resort to the provision of O.
                       XXI, R. 89.The decree was for small
                  rt   amount and he could have easily
                       deposited the decretal amount besides 5

                       per cent of the purchase money and thus
                       have the sale set aside. For reasons which
                       are not known to us he did not do so."52.        The same principle has beenlaid down bythe Apex



    Court in the case titled as Hukumchand versus Bansilal and




    others, reported in AIR 1968 Supreme Court 86.                        It is





    worthwhile to reproduce paras 8 and 9 of the judgment herein:"8. It is on these principles that we have to





                       decide whether the trial court was correct.
                       We have already indicated that the sale
                       was held on April 7, 1958, and in the
                       normal course it would have been
                       confirmed after 30 days unless an
                       application under R. 89, R. 90 or Rule 91
                       of Order XXI was made. Besides this case
                       is, as we have already assumed, analogous
                       to the case of a final mortgage decree. The
                       judgment­debtor mortgagor had the right
                       to deposit the amount at any time before::: Downloaded on - 15/04/2017 21:31:10 :::HCHP34confirmation of sale within 30 days after
         the sale or even more than 30 days after
         the sale under Order XXXIV, Rule 5 (1) so
         long as the sale was not confirmed. If the




                                                .amount had been deposited before the





         confirmation of sale, the judgment­debtors
         had the right to ask for an order in terms
         of Order XXXIV, Rule 5 (1) in their favour.In this case an application under O.XXI
         R. 90 had been made and therefore the
         sale could not be confirmed immediately




                       of
         after 30 days which would be the normal
         course; the confirmation had to await the
         disposal of the application under Order
         XXI, Rule 90. That application was
         disposed of on October 7, 1958 and was
          rt
         dismissed. It is obvious from the order
         sheet of October 7, 1938 that an oral

         compromise was arrived at between the
         parties in court on that day. By that
         compromise time was granted to the
         respondents to deposit the entire amount


         due to the decree­holder and the auction­
         purchaser by November 21, 1958.
         Obviously, the basis of the compromise
         was that the respondents withdrew their




         application under O. XXI, Rule 90 while
         the decree­holder society and the auction­





         purchaser appellant agreed that time
         might be given to deposit the amount upto
         November 21, 1958. If this agreement had





         not been arrived at and if the application
         under Order XXI, Rule 90 had been
         dismissed (for example, on merits) on
         October 7, 1958, the court was bound
         under O. XXI, Rule 92 (1) to confirm the
         sale at once. But because of the
         compromise between the parties by which
         the respondents were given time upto
         November 21, 1958 the court rightly
         postponed the question of confirmation of
         sale till that date by consent of parties.
         But the fact remains that the application::: Downloaded on - 15/04/2017 21:31:10 :::HCHP35under Order XXI, Rule 90 had been
         dismissed on October 7, 1958 and
         thereafter, the court was bound to confirm
         the sale but for the compromise between




                                                 .the parties giving time upto November 21,





         1958.9. Now let us see what happened about
         November 21, 1958. On November 20,





         1958, an application was made by the
         respondents praying that they might be
         given one day more as November 21, 1958




                        of
         was holiday. No order was passed on that
         date, but it is remarkable that no money
         was deposited on November 20, 1958.
         When the matter came up before the court
         on November 22, 1958 no money was
          rt
         deposited even on that day. Now under
         Order XXXIV, Rule 5 it was open to the

         respondents to deposit the entire amount
         on November 22, 1958 before the sale was
         confirmed, but no such deposit was made
         on November 22, 1958. On the other hand,


         counsel for the respondents prayed to the
         executing court for extension of time by 14
         days. The executing court refused that
         holding that time upto November 21, 1958




         had been granted by consent and it was no
         longer open to it to extend that time. The





         executing court has not referred to Order
         XXI, Rule 92 in its order, but it is obvious
         that the executing court held that it could





         not grant time in the absence of an
         agreement between the parties, because
         Order XXI, Rule 92 required that as the
         application under Order XXI, R. 90 had
         been dismissed the sale must be
         confirmed. We are of the view that in the
         circumstances it was not open to the
         executing court to extend time without
         consent of parties, for time between
         October 7, 1958 to November 21, 1958 was
         granted by consent of parties.Section 148of the Code of Civil Procedure would not::: Downloaded on - 15/04/2017 21:31:10 :::HCHP36apply in these circumstances, and the
                        executing court was right in holding that
                        it could not extend time. Thereafter it
                        rightly confirmed the sale as required




                                                                .under Order XXI, Rule 92 there being no





                        question of the application of Order
                        XXXIV, Rule 5 for the money had not been
                        deposited on November 22, 1958 before the





                        order of confirmation was passed. In this
                        view of the matter, we are of opinion that
                        the order of the executing court refusing




                                       of
                        grant of time and confirming the sale was
                        correct."53.         In the case titled as M/s. Kayjay Industries (P)
                   rt
    Ltd. versus M/s. Asnew Drums (P) Ltd. and others, reported

    in (1974) 2 Supreme Court Cases 213, the Apex Court has

    held that the Courts are not bound to adjourn the sale till a good



    price is got, it being a notorious fact that court sales and market

    prices are distant neighbours.           Further held that mere




    inadequacy of price cannot demolish every court sale. It is apt to





    reproduce paras 7, 9 and 10 of the judgment herein:"7. Certain salient facts may be
                        highlighted in this context. A Court sale is
                        a forced sale and, notwithstanding the
                        competitive element of a public auction,
                        the best price is not often forthcoming. The
                        judge must make a certain margin for this
                        factor. A valuer's report, good as a basis,
                        is not as good as an actual offer and
                        variations within limits between such an
                        estimate, however careful, and real bids by
                        seasoned      businessmen       before    the
                        auctioneer are quite on cards. More so,::: Downloaded on - 15/04/2017 21:31:10 :::HCHP37when the subject­matter is a specialised
         industrial plant, which has been out of
         commission for a few years, as in this case,
         and buyers for cash are bound to be




                                                 .limited. The brooding fear of something





         out of the imported machinery going out of
         gear, the vague apprehensions of possible
         claims by the Dena Bank which had a





         huge claim and was not a party, and the
         litigious sequel at the judgment­debtor's
         instance, have 'scare' value in inhibiting




                         of
         intending buyers from coming forward
         with the best offers. Businessmen make
         uncanny calculations before striking a
         bargain and that circumstances must
         enter the judicial verdict before deciding
          rt
         whether a better price could be had by a
         postponement of the sale. Indeed, in the

         present case, the executing Court had
         admittedly declined to affirm the highest
         bids made on 16­5­1969, June 5, 1969 and
         August 28, 1969, its anxiety to secure a


         better price being the main reason. If
         Court sales are too frequently adjourned
         with a view to obtaining a still higher
         price it may prove a self­defeating exercise,




         for industrialists will lose faith in the
         actual sale taking place and may not care





         to travel up to the place of auction being
         uncertain that the sale would at all go
         through. The judgment­debtor's plea for





         postponement in the expectation of a
         higher price in the future may strain the
         credibility of the Court sale itself and may
         yield diminishing returns as was proved
         in this very case.8. ...........9. The first respondent's counsel, Shri
         Parekh, drew our attention to condition
         No. 3 in the present proclamation of sale
         which is as follows :::: Downloaded on - 15/04/2017 21:31:10 :::HCHP38The highest bidders for the two lots
           shall be declared to be the
           purchasers of the respective lots,
           provided always that he or they are




                                                 .legally qualified to bid, and provided





           that it shall be in the discretion of
           the undersigned Receiver holding the
           sale to decline acceptance of the





           highest bid for any lot when the price
           offered for any of the two lots
           appears so manifestly inadequate, as




                        of
           to make its acceptance inadvisable.
           The highest bid offered by any
           bidders for any of the two lots shall
           be subject to the sanction and
           approval of the District Judge,
          rt
           Thana.Form 29 prescribed in Appendix E to the
         Code contains condition No. 3 which is in
         like terms. The Court's activist obligation
         to exercise a discretion to make a fair sale
         out of a Court auction­and avert a distress



         sale ­ is underscored by this provision. In
         all public sales the authority must protect
         the interests of the parties and the rule is




         stated by this Court in Navalkha and
         Sons. v. Ramanya Das, (1970) 3 SCR 1 =





         (AIR 1970 SC 2037) thus :­

           "The principles which should govern





           confirmation of sales are well
           established. Where the acceptance of
           the offer by the Commissioners is
           subject to confirmation of the Court
           the offerer does not by mere
           acceptance get any vested right in the
           property so that he may demand
           automatic confirmation of his offer.
           The condition of confirmation by the
           Court operates as a safeguard
           against the property being sold at
           inadequate price whether or not it is::: Downloaded on - 15/04/2017 21:31:10 :::HCHP39a consequence of any irregularity or
           fraud in the conduct of the sale. In
           every case it is the duty of the Court
           to satisfy itself that having regard to




                                                 .the market value of the property the





           price offered is unreasonable. Unless
           the Court is satisfied about the
           adequacy of the price the act of





           confirmation of the sale would not be
           a proper exercise of judicial
           discretion."of
         Be it by a receiver, commissioner,
         liquidator or Court this principle must
         govern. This proposition has been
         propounded in many rulings cited before
          rt
         us and summed up by the High Courts.
         The expressions 'material irregularity in

         the conduct of the sale' must be
         benignantly construed to cover the climax
         act of the Court accepting the highest bid.
         Indeed, under the Civil Procedure Code, it
         is the Court which conducts the sale its



         duty to apply its mind to the material
         actors bearing its mind to the material
         factors bearing on the reasonableness of




         the price offered is part of the process of
         obtaining a proper price in the course of





         the sale. Therefore, failure to apply its
         mind to this aspect of the conduct of the
         sale may amount to material irregularity





         Mere, substantial injury without material
         irregularity is not enough even as material
         irregularity not linked directly to
         inadequacy of the price is insufficient. And
         where a Court mechanically conducts the
         sale or routinely signs assent to the sale
         papers, not bothering to see if the offer is
         too low and a better price could have been
         obtained, and in fact the price is
         substantially inadequate, there is the
         presence of both the elements of
         irregularity and injury. But it is not as if::: Downloaded on - 15/04/2017 21:31:10 :::HCHP40the Court should go on adjourning the sale
         till a good price is got, it being a notorious
         fact that Court sales and market prices
         are distant neighbours. Otherwise, decree­




                                                  .holders can never get the property of the





         debtor sold. Nor is it right to judge the
         unfairness of the price by hindsight
         wisdom. May be, subsequent events, not





         within the ken of the executing Court when
         holding the sale, may prove that had the
         sale been adjourned a better price could




                        of
         have been had. What is expected of the
         Judge is not to be a prophet but a
         pragmatist and merely to make a realistic
         appraisal of the factors, and, if satisfied
         that, in the given circumstances, the bid is
          rt
         acceptable, conclude the sale. The Court
         may consider the fair value of the

         property, the general economic trends, the
         large sum required to be produced by the
         bidder, the formation of a syndicate, the
         futility of postponements and the


         possibility of litigation, and several other
         factors dependent on the facts of each case.
         Once that is done, the matter ends there.
         No speaking order is called for and no




         meticulous post mortem is proper. If the
         Court has fairly, even if silently, applied





         its mind to the relevant considerations
         before it while accepting the final bid, no
         probe in retrospect is permissible.Otherwise, a new threat to certainty of
         Court sales will be introduced.10. So viewed we are satisfied that the
         district    Court     had     exercised     a
         conscientious and lively discretion in
         concluding the sale at Rs. 11.5 lakhs. If
         the market value was over 17 lakhs, it is
         unfortunate that a lesser price was
         fetched. Mere inadequacy of price cannot
         demolish every Court sale. Here, the Court
         tried its best, time after time, to raise the::: Downloaded on - 15/04/2017 21:31:10 :::HCHP41price. Well­known industrialists in the
                          public and private sectors knew about it
                          and turned up. Offers reached a
                          stationary off indefinitely in recovering its




                                                                  .dues on baseless expectations and distant,





                          prospects. The judgment­debtor himself,
                          by his litigious exercises, would have
                          contributed to the possible buyers being





                          afraid of hurdles ahead. After all,
                          producing around Rs. 11.4 lakhs openly to
                          buy an industry is not easy even for




                                         of
                          apparently affluent businessmen. The sale
                          proceedings had been pending too long
                          and the first respondent could not, even
                          when given the opportunity, produce
                          buyers by private negotiation. Not even a
                  rt      valuer's report was produced by him. We
                          are satisfied that the District Judge had

                          committed no material irregularity in the
                          conduct of the sale in accepting the highest
                          offer of the appellant on September 3,
                          1969."54.         We have gone through the entire record and the

    proceedings drawn by the learned Single Judge/executing Court




    and are of the view that no irregularity has been committed in





    attaching the property, conducting the auction proceedings and





    confirming the sale.55.         Having said so, the appeal, on the face of it, is

    not   maintainable.       Even otherwise,        on merits         also,     as

    discussed hereinabove, the appeal deserves to be dismissed and::: Downloaded on - 15/04/2017 21:31:10 :::HCHP42is dismissed accordingly alongwith all pending applications.(Mansoor Ahmad Mir)




                                                             .Chief Justice





                                        (Tarlok Singh Chauhan)





                                                 Judge
    November 08, 2016
           ( rajni )




                                     of
                         rt::: Downloaded on - 15/04/2017 21:31:10 :::HCHP