JUDGMENT D.P. Singh, J.
1. Heard learned counsel for the parties.
2. This petition is directed against a revisional order dated 3.11.1988 by which the auction sale in favour of the petitioner has been set aside.
3. Having obtained a money decree in suit No. 58 of 1972 against the predecessor-in-interest of the contesting opposite parties, the petitioner filed an Execution Case No. 12 of 1975. After rejection of the objections, the agricultural land of the judgment debtor was put to auction on 18,4.1980. wherein the petitioner decree holder was also permitted to bid. His being the highest bid was accepted and he deposited the 25% and for the remaining 75% he made a tender to deposit the amount in court on 2nd May, 1980 and after the tender was passed he deposited the entire sale amoxint on 6th May, 1980 and the sale was confirmed in his favour and he was put in possession of the disputed property. After more than five years, the contesting respondent filed an objection dated 91h August, 1985 claiming that since the amount was not deposited within 15 days as provided in Rule 85 of Order 21, the auction sale be set aside. The objection was rejected against which the judgment, debtor filed Revision No. 75 of 1987, which was been allowed by the impugned order.
4. Learned counsel for the petitioner has urged that the deposit of the amount, was sought to be made well within the 15th day in court, but due to the procedural rules, he had to submit a tender which was passed and thereafter forthwith the amoxint was deposited and as such the deposit would relate back to the date of submission and passing of the tender. He has then urged that the judgment debtor could not maintain any objection under Section 47 after expiry of five years of the confirmation of the said auction sale.
5. However, learned counsel for the respondents has urged that Rule 85 is mandatory in nature and its non-compliance, for whatever reason, would render the sale void and no rights would flow through such a void transaction. He has also urged that the rule contemplates actual payment and not tender. He has also urged that the court has no jurisdiction to enlarge the time as fixed by the rule.
6. It is apparent that the sale was held on 18.4.1980 and the petitioner approached the court for deposit of the remaining amount well within 15 days as set in Rule 85 of Order 21. As the court does not accept money and the prevailing practice is to deposit money by filing a tender and then delivering the amount in the treasury, a tender was moved whereafter the payment was made. The question is whether the payment would relate back to the date of making the tender. A Division Bench of our Court in the case of Mt. Gomti v. Lachman Das AIR (1934) Allahabad 817 was confronted with an identical situation where a tender for deposit of the amount under Rule 85 was moved within 15 days but the actual deposit was beyond the said period, the court held, relying upon a Full Bench decision of our court, that:
We are of the opinion that this contention is sound. It is settled law that a bona fide tender amounts to payment. There is no suggestion that the applicant was not in a position to make the payment at the time when he filed the tender in court.
7. It went on to hold that the payment would relate back to the date of tender. Another learned Single Judge of this court in the case of Kamta Prasad Jain v. Om Prakash and Ors. (1966)ALJ 1108 while considering an identical issue of deposit of cost, after relying upon several decisions has held that'-
On a parity of reasonings, cash having been deposited in accordance with the directions made on the tender, the payment related back to the date of filing of the tender, and in law the date of payment was the date when the tender was presented to the court.
8. In this case also the court found that the tender was bona fide as there was no suggestion that the petitioner was not in a position to deposit the amount and was only trying to enlarge the time fixed by the rule.
9. However, learned counsel for the respondent in support of his contention that the actual payment should be within 15 days, has relied upon a decision of the apex court in the case of Manilal Mohanlal v. Sayed Ahmed . In this case the apex court has no doubt held that the provision of Rule 85 is mandatory, but there is hardly any doubt with regard to the nature of the provision. This case is an authority on the question as to whether an auction purchaser is entitled to set off under Rule 84 without obtaining the decree on the basis of mortgage. Therefore, the ratio is of no help to the respondent. He has then relied upon another decision of the apex court in the case of Sardara Singh and Anr. v. Sardara Singh and Ors. , This case is also distinguishable on facts and in effect the ratio propounded is that the provision of Rule 85 is mandatory and non deposit of the amount within 15 days would not pass any title even though the sale certificate may have been issued.
10. Thus, it is evident that a bona fide payment would relate back to the date of tender. There is nothing on record to show that the tender was not bona fide as the amount was deposited forthwith. Therefore, the contention of the counsel for the petitioner is bound to be accepted.
11. There is another aspect of this case. The contesting respondent remained silent for about five years before filing an application in the nature of an objection under Section 47 before the.-executing court. The prayer in the objection was to set aside the auction sale dated 18.4.1980 and to deliver the possession to them. The period as prescribed in Article 127 of the Limitation Act for setting aside a sale in execution of a decree by a judgment debtor is 60 days from the date of the sale while Article 128 provides a period of days from the date of possession for obtaining possession disputing the right of the purchaser at a sale in execution of a decree. There is no justification given in the application for the inordinate delay of five years in moving the court.
12. For the reasons given above, this petition succeeds and is allowed and the impugned order dated 3.11.1988 is hereby quashed. No order as to costs.