RAM KARAN GUPTAversusJ.S. EXIM LTD. AND ORS.

                     [2012) 12 S.C.R. 683


                     RAM KARAN GUPTA                                 A
                                V.
                 J.S. EXIM LTD. AND ORS.
               (Civil Appeal No. 8652 of 2012)
                    DECEMBER 03, 2012
                                                                     B
    [K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.]

     Code of Civil Procedure, 1908 - Or.21, rr.84 and 85 -
Auction sale - Auction running into crores of rupees - Held:
In such a situation, auction purchaser not expected to pay the       C
amount in cash on the fall of the hammer.

      Code of Civil Procedure, 1908 - Or.21, r.89 - Object,
applicability and effect of- Held: Or.21 r.89 CPC gives a final
opportunity to the judgment debtor to save his property by           D
setting the sale aside before confirmation upon satisfying the
decretal debt and by paying compensation to the auction
purchaser - Or.21 r.89 CPC is intended to (i) to save the
judgment debtor from the threatened deprivation of his
property, (ii) to satisfy the claim of the decree holder and (iii)   E
 to compensate the auction purchaser- Clause (a) of Sub-rule
 (1) of r.89 of Or.21 requires the applicant to deposit in Court
5% of the purchase money for payment to the auction
purchaser - Deposit of the requisite amount in the Court is a
condition precedent or a sine qua non to an application for
setting aside the execution of sale and such amount must be          F
paid within a period specified in the rule and if deposit is made
after the time limit, the application must be dismissed -
Deposit made ulr.89 of Or.21 CPC should be unconditional
and unqualified and the decree holder or the auction
purchaser should be able to get the amount at once - The             G
rule is in the nature of a concession shown to the judgment
debtor, so he has to strictly comply with the requirements
thereof and a sale will not be set aside unless the entire

                               683                                   H
    684      SUPREME COURT REPORTS                [2012] 12 S.C.R.


A   amount specified in rub-rule (1) is deposited within 60 days
    from the date of the sale and, if it is beyond 60 days, the Court
    cannot allow the application.

       In a suit for partition, the suit property was ordered
B to be sold in public auction and the sale proceeds
  directed to be distributed among the shareholders.
  Auction was held on 8-10-20.10. The 1st respondent was
  found to be the highest bidder for a bid amount of Rs.9.60
  crores. The auction purchaser (1st respondent)
  deposited Rs.2.40 crores by way of 27 demand drafts of
C even date towards 25% of the bid amount. Later, the
  auction purchaser moved an application for depositing
  the remaining 75% of the sale price/bid amount of the suit
  property and the application was allowed and 75% of the
  sale amount was deposited by the auction purchaser on ,,
D 23.10.2010. Subsequently the auction purchaser moved ·
  an application under Order 21 Rules 94 and 95 of CPC
  for confirmation of sale. The appellant/judgment debtor·
  then sought for cancellation of the auction held on
  8.10.2010 stating that it was vitiated due to violation of the
E mandatory provisions of Order 21 Rule 84 and 85 CPC.
  The Executing Court rejected the objection raised by the
  appellant/judgment debtor and confirmed the auction. In
  appeal, the High Court upheld the order, and therefore
  th.e instant appeal.
F
         The appellant submitted that the auction purchaser
    had not complied with the mandatory provisions of Order
    21 Rules 84 and 85 CPC, inasmuch as he did not deposit
    25% of the bid amount "immediately" on the fall of the
    hammer; that on 1.12.2010 (i.e. within 60 days of the date
G of sale), the appellant had preferred an application before
    the Executing Court to allow him to deposit the entire
    amount of the sale, after deduction of his one-forth share
  . in the property, and handover the possession to him;
    that though the application was filed before confirmation
H
        RAM KARAN GUPTA v. J.S. EXIM LTD.            685

 of sale, but it was not considered by the Executing Court A
 which committed an error in confirming the sale before
 entertaining the said application; and that even now the
 appellant is willing to pay the entire amount deposited by
 the auction purchaser including interest and willing even
 to pay Rs.1 crore more so that he can save the property B
 where he is residing.

     Dismissing the appeal, the Court

      HELD:1.1. In the instant case, the auction purchaser
  had deposited 25% of the amount on 8.10.2010. When the C
  auction i~ for such a large amount, running in crores of
  rupees, nobody can expect the auction purchaser to pay
  the amount in cash on the fall of the hammer. In the
  instant case, the auction purchaser had paid Rs.2.40
. crores, may not be in cash, but by way of drafts on D
  8.10.2010 and the balance amount i.e. 75 % of the bid
  amount was also paid on 23.10.2010, consequently, the
  auction purchaser had complied with the provisions of
  Order 21 Rules 84 and 85 CPC. In Talco Bank case, this
  Court extended the meaning of the term "immediately" E
  which occurs in Order 21, Rule 84 CPC. [Paras 13, 14]
  [693-D·F]

      1.2. Order 21 Rule 89 CPC gives a final opportunity
 to the judgment debtor to save his property by setting the F
 sale aside before the confirmation upon the terms of
 satisfying the decretal debt and of paying compensation
 to the auction purchaser. On setting aside the sale under
 Order 21 Rule 89 CPC the property continues to be the
 property of the judgment debtor. Order 21 Rule 89 CPC
 is intended to (i) to save the judgment debtor from the G
 threatened deprivation of his property, (ii) to satisfy the
 claim of the decree holder an~ (iii) to compensate the
 auction purchaser. Rule 89 of Order 21 CPC also applies
 to a sale in execution of a decree for payment of money
 and an order of sale of property under the Partition Act, H
    686     SUPREME COURT REPORTS                    {2012] 12 S.C.R.

A 1893 is a deemed decree under the Code and, therefore,
  an application for setting aside sale in execution of such ·
  decree is maintainable. It also applles to a decree passed
  in terms of an award in a Partition suit, so also to a sale
  in execution of mortgage decree. Order 21 Rule 92 CPC
B provides for confirmation of sale, as also setting aside the
  sale. [Para 15] [695-A·D]

         1.3. In the instant case, there was no reference at all
    to the provisions of Order 21 Rule 89 in the application
    filed by the appellant on 1.12.2010, be that it may, even
C   then the appellant had not complied with the mandatory
    requirements of depositing the amount. Clause (a) of
    Sub-rule (1) of Rule 89 of Order 21 requires the applicant
    to deposit in Court 5 per cent of the purchase money for
    payment to the auction purchaser. Deposit of the
D   requisite amount in the Court is a condition precedent or
    a sine qua non to an application for setting aside the
    execution of sale and such a amount must be paid within
    a period specified in the rule and if the deposit is made
    after the time limit, the application must be dismissed.
E   The deposit made under Rule 89 of Order 21 CPC should
    be unconditional and unquatified and the decree holder
    or the auction purchaser should be able to get the
    amount at once. The rule is in the nature of a concession
    shown to the judgment debtor, so he has to strictly
F   comply with the requirements thereof and a sale will not
    be set aside unless the entire amount spectfied In rub-
    rule (1) is deposited within 60 days from the date of the
    sale and, if it is beyond 60 days, the Court cannot allow
    the application. The appellant-judgment debtor did not
G   pay the amount within the stipulated time and he only
    made an application on 1.12.2010 without depositing the
    amount and hence the Court cannot entertain such an
    application and bound to confirm the sale which, in this
    case, the Court did on 23.10.2010. There Is no error in the
H


                                           "";   .   ~   _,
        RAM KARAN GUPTA v. J.S. EXIM LTD.               687


  judgment and orders of the Executing Court as well as       A
· the High Court and the belated offer made .by the
  appellant for depositing the amount now cannot be
  entertained and the same is rejected. [Paras 19, 20 and
  21] [699-E-H; 700-A-D]
                                                              B
      Rosati V. v. Talco Bank and Others AIR 2007 SC 998:
 2007 (1) SCR 1169; Tribhovandas Purshottamdas Thakkar
 v. Ratilal Moti/al Patel and Others AIR 1968 SC 372: 1968
 SCR 455 and Chal/amane Huchha Gowda v. M.R. Tirumala
 and Another (2004) 1 SCC 453: 2003 (6) Suppl. SCR 506 .;..   C
 relied on.

     Dadi Jagannadham v. Jammlu Ramulu and Others
 (2001) 7 sec 71: 2001 (2) Suppl. SCR 60 - referred to.

     Manila/ Mohan/al Shah and Others v. Sardar Sayed · 0
 Ahmed Sayed Mahmad and Another AIR 1954 SC 349: 1955
 SCR 108; Bairam son of Bhasa Ram v. flam Singh and
 Others AIR 1996 SC 2781: 1996 (5) Suppl. SCR 104; P. K.
 Unni v. Nirmala Industries and Others (1990) 2 SCC 378:
 1990 (1) SCR 483 and M. Noohukan v. Bank of Travancore E
 and Another (2008) 11 SCC 161 - cited.

                     Case Law Reference:

   1955 SCR 108                 cited         Para 11

   1996 (5) Suppl. SCR 104      cited         Para 11         F
   2001 (2) Suppl. SCR 60       referred to   Para 11, 16

   1990 (1) SCR 483             cited         Para 11, 16

   (2008) 11 sec 161            cited         Para 11         G
   2007 (1) SCR 1169            relied on     Para 12

   1968 SCR ·455                relied on     Para 15, 16

   2003 (6) Suppl. SCR 506      relied on     Para 15, 16
                                                              H
    688      SUPREME COURT REPORTS                [2012] 12 S.C.R.


A       CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    8652 of 2012.

       From the Judgment & Order dated 11.11.2011 of the High
  Court of Delhi at New Delhi in CM(M) No. 1093 of 2011 and
B E.F.A. No. 15 of 2011.
        Ranjit Kumar, V. Giri, Suhail Dutt, Subodh Pathak,
    Dharmendra Kumar Sinha for the Appellant.

        C.A. Sundram, Jagjit Singh Chhabra, Shamin Ahmed
c   Khan, Yashvardhan Roy, Azhar Alam, Puneet Jain, Anurag
    Gohil, Pratibha Jain, Balbir Singh Gupta, Sudhir Mendiratta for
    the Respondents.
          The Judgment of the Court was delivered by
D         K.S. RADHAKRISHNAN, J. 1. Leave granted.

       2. This matter arises in execution and this appeal has been
  preferred by one of the judgment debtors challenging the
  common final judgment and order dated 11.11.2011 passed
E by the High Court of Delhi in C. M. (M) No. 1093 of 2011 and
  E.F.A. No. 15 of 2011.

        3. Decree holders and judgment debtors are co-sharers
  of a property bearing No. 1-87, Ashok Vihar, Delhi (hereinafter
  referred to as the 'suit property'). Late Rameshwar Dass Gupta
F filed a suit for partition of the suit property and after passing a
  preliminary decree, a final decree was passed and the suit
  property was ordered to be sold in public auction and sale
  proceeds were directed to be distributed among the
  shareholders.
G
       4. Decree holders filed execution petition and vide order
  dated 20.11.2009, the auction sale was scheduled to be held
  on 9.1.2010. However, objector/J.D.2 Shri Ram Karan Gupta
  (appellant herein) moved an application seeking stay of auction
H sale scheduled to be held on 9.1.2010 and a joint application
        RAM KARAN GUPTA v. J.S. EXIM LTD.                 . 689
             [K.S. RADHAKRISHNAN, J.)
was moved by the decree holders and judgment debtors,              A
wherein it was disclosed that J.D.2 had agreed to purchase the
suit property, as such, the auction sale be adjourned. Later on,
J.D.2 failed to comply with the terms and conditions of the
Compromise and, therefore, a fresh process for auction sale
was issued and the auction sale was scheduled to be held on        B
4.7.2010. Due to various reasons, it did not materialize. Later,
auction sale was scheduled to be held on 8.10.2010 and the
auction was completed and the auction purchaser Mis J.S.
Exim Ltd. (1st respondent herein) was found to be the highest
bidder for a bid amount of Rs.9.60 crores. The auction             c
purchaser deposited Rs.2.40 crores by way of 27 demand
drafts of even date towards 25% of the bid amount. The Court
Auctioneer placed on record the record of the auction
proceedings held on 8.10.2010.
       5. Later, the auction purchaser moved an application for D
  depositing the remaining 75% of the sale price/bid amount of
  the suit property and the application was allowed and 75% of
  the sale amount was deposited by the auction purchaser on
  23.10.2010 in the State Bank of India, Tees Hazari Court, Delhi.
                                                                   E
       6. The auction purchaser, later, moved an application
  under Order 21 Rules 94 and 95 of the Code of Civil Procedure
  (for short 'CPC') for confirmation of sale. J.D.2, the appellant
  herein, then sought for cancellation of the auction held on
  8.10.2010 stating that the auction purchaser had failed to F
  deposit 25% of the bid amount on completion of the auction
  sale proceedings. Further, it was also pointed out that the
  auction purchase·r had enclosed the drafts dated 7.10.201 O
  issued by the Indian Overseas Bank, Chennai, but the said
  bank drafts had not been enclosed by the Court Auctioneer with G
  her report. It was also contended that the auction was vitiated
  due to the violation of the mandatory provisions of Order 21
. Rule 84 and 85 CPC.
     7. The auction purchaser refuted all those contentions and
 submitted that 25% of the bid amount was deposited on the         H
      690      SUPREME COURT REPORTS                 (2012) 12 S.C.R.

   A date of auction after conclusion of the auction sale proceeding
     and the remaining 75% of the bid amount was deposited on
     23.10.2010. Further, it was pointed out that the auction
     purchaser had got prepared the demand drafts of Rs.2.50
     crores in the name of the Court Auctioneer. But, later on, it was
   B disclosed by the Court Auctioneer that the demand drafts
     should be issued in the name of the competent authority,
     consequently, the auction purchaser got prepared the said
     demand drafts on 8.10.2010 and handed over the same to the
     Court Auctioneer. Further, it was also pointed out that the words
 . c occurring "shall pay" and "immediately" do not mean that the
     25% of the bid amount should be paid at the fall of the hammer.
     Further, it was also pointed out that the auction sale could be
     set aside only on the ground of material irregularity or fraud that
     had resulted in substantial injury to the applicant.
.' D
          8. The Executing Court elaborately considered the various
     contentions raised by the parties and perused the documents
     and took the view that the auction purchaser had deposited
     25% of the bid amount as mandated by Order 21 Rule 84 CPC.
     Further, it was also held that the remaining 75% of the bid
   E amount was also deposited by the auction purchaser on
     23.10.2010 in terms of Order 21 Rule 85 CPC. The Court,
     therefore, rejected the objection raised by the appellanU
     judgment debtor and confirmed the auction, vide its order dated
     24.3.2011.
  F
        9. The appellanUjudgment debtor, aggrieved by the said
    order, preferred an appeal being E.F.A No. 15 of 2011 and
    C.M. (M) No. 1093 of 2011 before the High Court of Delhi.
    Before the High Court, contention was raised that the auction
  G purchaser had not complied with the mandatory requirements
    of Order 21 Rules 84 and 85 CPC and that 25% of the bid
    amount was not deposited on the fall of the hammer and,
    consequently, the entire sale transaction was void and liable
    to be set aside. Further, it was also stated that since the
  H appellant was one of the family members, he should have been
       RAM KARAN GUPTA v. J.S. EXIM LTD.                   691
            [K.S. RADHAKRISHNAN, J.]
permitted to get the sale executed in his favour, since he had    A
a pre-emptive right and he was ready and willing to deposit the
amount of Rs.9.60 crores, so as to avoid the sale.
       10. The High Court considered the various contentions
 raised by the parties and concurred with the views expressed
                                                                   8
 by the Executing Court that the auction purchaser had complied
with Order 21 Rules 84 and 85 CPC. The High Court noticed
that the auction purchaser had deposited 25% of the bid
 amount as mandated by Order 21 Rule 84 CPC and that he
 had also paid the remaining 75% of the bid amount within the
 statutory period, in terms of Order 21 Rule 85 CPC. The High C
 Court, therefore, upheld the orde·r of the trial Court confirming
the sale and directed the parties to execute documents of title
 in favour of the auction purchaser. Aggrieved by the same, this
 appeal has been preferred.
                                                                   D
       11. Shri Ranjit Kumar, learned senior counsel appearing
 for the appellant, submitted that the auction purchaser had not
 complied with the mandatory provisions of Order 21 Rules 84
 and 85 CPC, inasmuch as he did not deposit 25% of the bid
 amount immediately on the fall of the hammer. It was pointed E
 out that 25% of the bid amount was deposited only on
 11.10.2010 and non-compliance of the above mentioned
 statutory provisions has vitiated the auction sale. In support of
 his contentions, reliance was placed on the judgments of this
 Court in Manila/ Mohan/al Shah and Others v. Sardar Sayed F
 Ahmed Sayed.Mahmad and Another AIR 1954 SC 349 and
 Bairam son of Bhasa Ram v. /lam Singh and Others Al R 1996
 SC 2781. Learned senior counsel submitted that the appellant
 had preferred. an application on .1.12.2010 before the Executing
 Court to allow the appellant to deposit the entire amount of the G
 sale, after deduction of his one-forth share in the property, and
 handover the possession to him. Learned senior counsel
 submitted that the application was filed before the confirmation
 of sale, but was not considered by the Executing Court.Learned
.senior counsel submitted that only if the application is allowed
                                                                   H
    692      SUPREME COURT REPORTS               [2012] 12 S.C.R.

A under Order 21 Rule 92(2) CPC, the appellant could deposit
  the amount within the time stipulated in the said provision.
  Learned senior counsel submitted that the Executing Court has
  committed an error in confirming the sale before entertaining
  the application and allowing the same, so that the appellant
8 could   have deposited the entire amount. Learned senior
  counsel submitted that even now the appellant is willing to pay
  the entire amount deposited by the auction purchaser including
  interest. Further, it was also submitted that the appellant is
  willing even to pay Rs.1 crore more so that he can save the
  property where he is residing. Learned senior counsel also
C placed reliance on a Constitution Bench judgment of this Court
  in Dadi Jagannadham v. Jammlu Ramulu and Others (2001)
  7 sec 71 and pointed out that there is no strict time limit in
  depositing the amount and the question of deposit arises only
  after the application is allowed. Learned senior counsel pointed
D out that rationale in P.K. Unni v. Nirmala Industries and others
  (1990) 2 sec 378 and the views expressed in that judgment
  that Order 21 Rule 92(2) CPC prescribed a period of limitation,
  was found to be incorrect in Jammlu Ramulu (supra). Learned
  senior counsel also placed reliance on M. Noohukan v. Bank
E of Travancore and Another (2008) 11 SCC 161 and submitted
  that this Court, in the similar circumstances, had extended the
  time for depositing the amount. Learned senior counsel
  submitted that, under such circumstances, the prayer for
  depositing the amount, as stated above, be allowed.
F
        12. Shri C.A. Sundram, learned senior counsel appearing
  for the respondent, submitted that this Court shall not interfere
  with the concurrent findings rendered by the Courts below.
  Learned senior counsel submitted that the auction purchaser
G deposited 25% of the bid amount on 8.10.2010 and further
  deposited the remaining amount i.e. 75% of the bid amount on
  23.10.2010. Learned senior counsel pointed out that the
  mandate of Order 21 Rules 84 and 85 CPC was complied with
  in letter and spirit and the Court Auctioneer was satisfied that
H the entire amount had been paid. Learned senior counsel
        RAM KARAN GUPTA v. J.S. EXIM LTD.                   693
             [K.S. RADHAKRISHNAN, J.]
submitted that the word "immediately" occurring in Order 21         A
Rule 84 CPC was expanded by this Court in Rosa/i V. v. Talco
Bank and Others AIR 2007 SC 998. It was pointed out that, in
the present case, 27 drafts of Rs.2.40 corores had been paid
to the Court Auctioneer on 8.10.2010, which is reflected in the
report of the Court Auctioneer dated 8.10.2010. The balance         B
amount was also deposited in accordance with Order 21 Rule
85 CPC. Learned senior counsel submitted that there is no
bona fide in the offer made by the appellant and, if, had any
genuine interest for avoiding the sale, the amount offered should
have been deposited before the confirmation of sale and within      c
the time stipulated in Order 21 Rule 92(2) CPC.
     13. We are in full agreement with the order passed by the
Executing Court as well as the High Court that the auction
purchaser had deposited 25% of the amount on 8.10.2010.
When the auction is for such a large amount, running in crores D
of rupees, nobody can expect the auction purchaser to pay the
amount in cash on the fall of the hammer. So far as the instant
case is concerned, facts would reveal that the auction
purchaser had paid Rs.2.40 crores, may not be in cash, but by
way of drafts on 8.10.2010 and the balance amount i.e. 75 % E
of the bid maount was also paid on 23.10.2010, consequently,
in our view, the auction purchaser had complied with the
provisions of Order 21 Rules 84 and 85 CPC.
     14. We may, in this connection, refer to the judgment of       F
this Court in Talco Bank (supra), wherein this Court has
extended the meaning of the term "immediately" which occurs
in Order 21 Rule 84 CPC, as follows:
          "30. The term "immediately", therefore, must be
    construed having regard to the aforementioned principles.       G
    The term has two meanings. One, indicating the relation
    of cause and effect and the other, the absence of ijme
    between two events. In the former sense, it means
    proximately, without intervention of anything, as opposed
                                                                    H
     694      SUPREME COURT REPORTS                (2012] 12 S.C.R.

·A         to "immediately." In the latter sense, it means
           instantaneously.
                31. The term "immediately", is thus, required to be
           construed as meaning with all reasonable speed,
           considering the circumstances of the case. (See
B
           Halsbury's Laws of England, 4th Edition, Vol. 23, para
           1618, p. 1178)."

       Learned senior counsel appearing for the appellant, as we
  have already indicated, submitted that the Executing Court
C should have allowed his application dated 1.12.2010 since he
  preferred that application within 60 days of the date of sale, but
  could not deposit the amount since the application filed in terms
  of Order 21 Rule 92(2) CPC was neither dealt with nor allowed.
  Order 21 Rule 89 CPC, it may be noted, gives a final opportunity
O to the judgment debtor to save his property by setting the sale
  aside before the confirmation upon the terms of satisfying the
  decretal debt and of paying compensation to the auction
  purchaser. Rules 89 to 92 of Order 21 deal with setting aside
  of sale. When a property is sold in execution of a decree and
E an application for setting aside the sale can be made under
  those provisions by the persons affected on the grounds
  mentioned therein. Sl!ch an application has to be made within
  the prescribed period of limitation, the provisions mentioned
  therein are in the nature of concession and those provisions
F must be strictly complied with before a sale is set aside before
  confinnation. On setting aside the sale under Order 21 Rule 89
  CPC the property continues to be the property of the judgment
  debtor.
        15. This Court in Tribhovandas Purshottamdas Thakkar
 G v. Rafi/al Motilal Patel and Others AIR 1968 SC 372 held that
   the rule is intended to confer a right upon the judgment debtor,
   even after the property is sold, to satisfy the claim of the decree
   holder and to compensate the auction purchaser by paying him
   5 per cent of the purchase-money. In Chal/amane Huchha
 H Gowda v. M. R. Tiruma/a and Another (2004) 1 SCC 453, this
         RAM KARAN GUPTA v. J.S. EXIM LTD.                    695
              [K.S. RADHAKRISHNAN, J.]
. Court held that it gives a final opportunity to put an end to the A
  dispute, at the instance of the judgment debtor before the sale
  is confirmed by the Executing Court and enables him to save
  his property. Order 21 Rule 89 CPC is, therefore, intended to
  (i) to save the judgment debtor from the threatened deprivation
  of his property, (ii) to satisfy the claim of the decree holder and B
  (iii) to compensate the auction purchaser. Rule 89 of Order 21
  CPC also applies to a sale in execution of a decree for payment
  of money and an order of sale of property under the Partition
  Act, 1893 is a deemed decree under the Code and, therefore,
  an application for setting aside sale in execution of such decree c
  is maintainable. It also applies to a decree passed in terms of
  an award in a Partition suit, so also to a sale in execution of
  mortgage decree. Order 21 Rule 92 CPC provides for
  confirmation of sale, as also setting aside the sale, which reads
  as follows:
                                                                      D
                "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:          E

           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    F
     claim or objection.

            (2) Where such application is made and allowed, and
     where, in the case of an application 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 G
     under Rule 89 is found to be deficient owing to any clerical
     or arithmetical mistake on t11e part of the depositor and
     such deficiency has been mc1de good within such 'time as
     may be fixed by the court, th'e court shall make an Order
     setting aside the sale:                                      H
    696       SUPREME COURT REPORTS                  (2012) 12 S.C.R.


A               Provided that no order shall be made unless notice
          of the application has been given to all persons affected
          thereby:
                Provided further that the deposit under this sub-rule
          may be made within sixty days in all such cases where the
B
          period of thirty days, within which the deposit had to be
          made, has not expired before the commencement of the
          Code of Civil Procedure (Amendment) Act, 2002.

                (3) No suit to set aside an Order made under this
c         rule shall be brought by any person against whom such
          Order is made.

               (4) Where a third party challenges the judgment-
          debtor's title by filing a suit against the auction-purchaser,
D         the decree-holder and the judgment-debtor shall be
          necessary parties to the suit.

                (5) If the suit referred to in sub-rule (4) is decreed,
          the Court shall direct the decree-holder to refund the money
          to the auction-purchaser, and where such an order is
E         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.

          Sub-rule (1) of Rule 92 deals with cases where no
F         application to set aside the sale is made or such an
          application is made and disallowed. In all these cases, the
          Court shall make an order confirming the sale. Sub-rule (2)
          of Rule 92 covers those cases where an application for
          setting aside is made and allowed or in an application
G
          under Rule 89 requisite deposit has been made, in all such
          cases, the Court is bound to set. aside the sale.
       16. A Constitution Bench of this Court in Jammulu
  Ramu/u (supra) had occasion to consider the scope of Order
  21 Rule 92(2) and Rule 89 CPC. Overruling P.K. Unni (supra),
H this Court held as follows:
   RAM KARAN GUPTA v. J.S. EXIM LTD.                  697
       [K.S. RADHAKRISHNAN, J.)
       "15. A plain reading of Order 21 Rule 92 CPC shows A
that the court could either dismiss an application or allow
an application. Order 21 Rule 89 CPC prescribes no
period either for making the application or for making the
deposit. The Limitation Act also prescribes no period for
making a deposit. However, Article 127 of the Limitation 8
Act prescribes a period within which an application to set
aside a sale should be made. Earlier, this was 30 days,
now it has been enhanced to 60 days. Unless there was a
period prescribed for making a deposit, the time to make
the deposit would be the same as that for making the c
application. This is so because if an application is made
beyond the period of limitation, then a deposit made at
that time or after that period would be of no use.

      16. Normally, when the legislature wishes to
prescribe a period for making a deposit. it does so by D
using words to the effect "no deposit shall be made after
... days" or "a deposit shall be made within ... days" or
"no application will be entertained unless a deposit is
made within ... days". Order 21 Rule 92(2) CPC does not
use any such expressions. The relevant portion of Order E
21 Rule 92(2) CPC reads as follows:

      "92. (2) Where such application is made and allowed,
and where, in the case of an application under Rule 89,
the deposit required by that rule is made within thirty days F
from the date of sale, .. . the court shall make an order
setting aside the sale:"
      Thus Order 21 Rule 92(2) CPC is only taking away
discretion of the eourt to refuse to set aside the sale where
an application is made and allowed and the deposit has G
been made within 30 days from the date of sale. It is thus
clear that Order 21 Rule 92(2) CPC is not prescribing any
period of limitation within which a deposit has to be made.
     17. Viewed in this context the intention of the H
                                                         -
    698       SUPREME COURT REPORTS                (2012] 12 S.C.R.

A         legislature in extending the period under Article 127 of the
          Limitation Act may be seen. It is very clear from the
          Statement of Objects and Reasons, which have been set
          out hereinabove, that the period under Article 127 of the
          Limitation Act was extended from 30 days to 60 days in
B         order to give more time to persons to make deposits. The
          legislature has noted that the period of 30 days from the
          date of sale was too short and often caused hardships
          because judgment-debtors usually failed to arrange for
          money within that period. The question then would be
c         whether by merely amending Article 127 of the Limitation
          Act the legislature has achieved the object for which it
          increased the period of limitation to file an application to
          set aside sale."
       The Constitution Bench held that all that Order 21 Rule
D 92(2) CPC provides is that if the deposit is made within 30 days
  from the date of sale and an application is filed then the court
  would have no discretion but to set aside the sale. The Court
  held that that does not mean tltat if the deposit is made after
  30 days the court could not entertain the application. If the
E deposit is made beyond the period of 30 days, but within the
  period of 60 days, then it will be within the discretion of the court
  whether or not to grant the application.

        17. Law Commission in its 89th report, para 42.35, page
F 219, Law Commission report 139th report paras 3.1to3.6 and
  4.1 to 4.5 considered the period of limitation of thirty days for
  depositing the amount to set aside sale as specified in sub-
  rule (2) of Rule 92 and suggested enlargement of period of sixty
  days so as to be consistent with Section 127 of the Limitation
G Act. Following that the second proviso to sub-rule (2) of Rule
  92, as inserted by the Code of Civil Procedure (Amendment)
  Act, 2002, clarified that the amendment would also apply to all
  those cases where the period of thirty days within which the
  deposit was required to be made had not expired before the
  commencement of the Amendment Act, 2002. The amendment
H
         RAM KARAN GUPTA v. J.S. EXIM LTD.                    699
              [K.S. RADHAKRISHNAN, J.]
 which came into force w.e.f. 01.07.2002 extends the period of       A
 deposit up to sixty days, which is in conformity with Section 127
 of the Limitation Act, as amended by the Code of Civil
 Procedure (Amendment) Act 1976.
       18. In Chal/amane Huchha Gowda (supra), the Court was
                                                                    8
 primarily dealing with the question as to whether a mode of
 application has been prescribed for making an application for
 setting aside the sale. The Court noted that Order 21 Rule 89
 CPC requires an application to be made for setting aside the
 sale, nothing is stated in the rule regarding the mode of
 application and then held that purshis contains an implicit prayer C
 for setting aside the sale and the absence of a formal
 application does not amount to non-compliance with the
 provision. The above view expressed by certain High Courts
 was found favour by this Court in Tribhovandas Purshottamdas
 Thakkar (supra) and this Court held that Order 21 Rule 89 CPC D
 does not provide that the application in a particular form shall
 be filed to set aside the sale.
       19. We notice, in this case, there was no reference at all
  to the provisions of Order 21 Rule 89 in the application filed E
  by the appellant on 1.12.2010, be that it may, even then the
: appellant had not complied with the mandatory requirements
  of depositing the amount. Clause (a) of Sub-rule (1) of Rule 89
  of Order 21 requires the applicant to deposit in Court 5 per cent
  of the purchase money for payment to the auction purchaser. F
  Deposit of the requisite amount in the Court is a condition
  precedent or a sine qua non to an application for setting aside
  the execution of sale and such a amount must be paid within a
  period specified .in the rule and if the deposit is made after the
  time limit, the application must be dismissed. The deposit G
  made under Rule 89 of Order 21 CPC should be unconditional
  and unqualified and the decree holder or the auction purchaser
  should be able to get the amount at once.
      20. We have already indicated that the rule is in the nature
 of a concession shown to the judgment debtor, so he has to          H
    700      SUPREME COURT REPORTS               [2012] 12 S.C.R.


A strictly comply with the requirements thereof and a sale will not
  be set aside unless the entire amount specified in rub-rule (1)
  is deposited within 60 days from the date of the sale and, if it
  is beyond 60 days, the Court cannot allow the application. We
  have already found that the appellant-judgment debtor did not
B pay the amount within the stipulated time and he only made an
  application on 1.12.2010 without depositing the amount and
  hence the Court cannot entertain such an application and
  bound to confirm the sale which, in this case, the Court did on
  23.10.2010.
c        21. We, therefore, find no error in the judgment and orders
    of the Executing Court as well as the High Court and the
    belated offer made by the appellant for depositing the amount
    now cannot be entertained and the same is rejected.

D        22. The appeal, therefore, lacks in merits and the same
    is dismissed, with no order as to costs.

    B.B.B.                                     Appeal dismissed.