JUDGMENT D.P. Singh, J.
1. In spite of stop order, no rejoinder affidavit has been filed.
2. I have heard learned counsel for the parties on merits in this petition.
3. This petition is directed against an order dated 29.4.1995 by which the objection filed on behalf of appellate court and the proceedings have been set aside and remanded for fresh auction proceedings.
4. The predecessor in interest of the petitioner filed a money suit No. 63 of 1974, which was decreed on 18.10.1976 for a sum of Rs. 2270.15 paisa whereafter an execution application was filed on 4.10.1977, which was numbered as execution case No. 41 of 1977. Total land measuring 3 bigha, 10 biswas and 11 dhoor was allegedly attached and sold in a court auction on 20.11.1978 wherein the decree holder himself was the highest bidder for a sum of Rs. 2325/- and after adjustment of decretal amount he deposited Rs. 54.85 paisa with the Court Amin. The sale was confirmed on 23.12.1978 and a sale certificate was also issued.
5. An application under Order 21 Rule 90 was filed by the judgment debtor on 16.7.1979 inter alia stating therein that the entire auction proceedings were ex parte and against the provisions of law etc. The objections were rejected on two grounds by the executing court vide its order dated 18.11.1982. Firstly, the court was of the opinion that the amount as prescribed under Order 21 Rule 90 had not been deposited along with the objection, therefore, the objections were not maintainable and secondly, it held that the objections were not maintainable and secondly, it held that the objections were barred by limitation as having been filed beyond the period of limitation. Aggrieved the judgment debtor preferred an appeal which was registered as Misc. Appeal No. 519 of 1982 which has been allowed by order dated 29.4.1984 after hearing the parties and the entire auction proceedings have been set aside and the case has been remanded to the executing court to proceed with the execution afresh.
6. Learned counsel for the petitioner has firstly urged that the appellate court had erred in law in holding that without the amount being fixed by the court, no deposit under Order 21 Rule 90 could have been made and therefore the application was maintainable.
7. The relevant part of Order 21 Rule 90 as it applies to the State of U.P. may be noted as below:
"Provided that no application to set aside a sale shall be entertained---
(a)-----------------------------
(b) Unless the applicant deposits such amount not exceeding twelve and half Per Cent of the some realized by the sale or furnishes such security as the court may in its discretion fix, except when the court for reasons to be recorded dispenses with the requirements of this clause:
Provided further that no sale shall be set aside on the ground irregularity or fraud unless, upon the fact proved the court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud.
8. A perusal of the aforesaid Clause (b) to the proviso makes it clear that the applicant has to deposit such amount, which should not be more than twelve per cent of the bid as fixed by the court. It also extends discretion to the court to dispense with the requirement on reasons to be recorded. The provision fixes the outer limit but it does not fix the minimum amount which has to be deposited built it has left it upon the court to fix the amount which has to be deposited. The appellate court has rightly held that on the plain language of the provision until and unless the amount is fixed by the court, it cannot be said that the application was not maintainable without deposit. It is not denied to the counsel for the petitioner and has also been held by the lower appellate court that no amount was fixed by the court and therefore there was no question of deposit of any amount. To the contrary the court has found that in fact an application had been moved on behalf of judgment debtor to dispense with the requirement of deposit of money or security and which application remained pending the finding. Learned counsel for the petitioner has failed to point out any law to the contrary. In my opinion the decision of the lower appellate court on this issue appears to be correct and therefore, the argument of learned counsel for the petitioner cannot be sustained.
9. The counsel for the petitioner has next urged that the application under Order 21 Rule 90 was filed beyond the period prescribed and therefore, the appellate court has illegally allowed the application without setting aside the finding of the trial court that the application was barred by limitation.
10. From the record, it is evident that the judgment debtor filed the application with the allegations that he acquired knowledge of the auction sale on 14.7.1979. It is also apparent from the record that this application was converted into an application under Order 21 Rule 90 on 2.7.1980 and therefore, the trial court held that the application was beyond time as it was converted into one under Order 21 Rule 90 only on 2.7.1980. The reasoning of the trial court is fallacious. Neither from the appellate court's judgment it is clear as to whether there was any authentic evidence to show that the judgment debtor had knowledge of the auction sale prior to 14.7.1979 even in the writ petition there is no such authentic evidence or averment to show that the judgment debtor had knowledge of the auction sale prior to 14.7.1979. The appellate court held that as the alleged possession was given on 31.5.1979, knowledge can be presumed. This was only a assumption without any concrete finding. As already observed hereinabove, since there is nothing on record to show that the judgment debtor had knowledge prior to 14.7.1979, this finding of the appellate court does not appear to be correct. However, the appellate court has held that the auction sale was against the express provisions of Order 21 Rule 66, Rule 72 and Rule 110 thus even though the application was allegedly filed beyond limitation, the court would not be justified in rejecting it. The appellate court has held that the petitioner did not take permission from the court to bid at the auction sale thus violating the mandatory provision of Order 21 Rule 72. It has also found that the 25% of the amount was not deposited by the decree holder at the fall of hammer and neither the 75% was deposited within 15 days which was in violation of Order 21 Rule 84-85. Therefore, the auction sale itself fell through. It found that the decree holder had adjusted the sale amount with the decretal amount without any permission from the court. All these findings remain unchallenged. Thus, even though the appellate court has not correctly applied itself to the issue as to whether the application was time barred but since it has up held the objection of the judgment debtor that the auction sale was in violation of the mandatory provisions of law, as noted hereinabove, it can safely be held that the contention of the learned counsel for the petitioner on this issue also cannot be sustained.
11. No other point has been urged.
12. For the reasons given above, this petition fails and is dismissed with costs through out.