' The appellants, admittedly, are the judgment-debtors in a suit for recovery, filed by the respondent-Bank, which has been decreed to the tune of Rs.4,96,222 plus mark-up. In execution proceedings, for the satisfaction of the decree, the property in question was put to auction by the Court and in the auction, the respondent No,2 is the highest bidder for an amount of Rs.4,33,000.
The said respondent applied for confirmation of the sale, while the appellants moved an application under Order 21, rule 90, C.P.C., on the ground that, the sale has been made in violation of the mandatory rules vis-a-vis, reserve price fixed by the Court to the tune of Rs.2,00,000 has been unauthorizedly changed by the Court Auctioneer, to Rs.1,00,000, in the proclamation of the sale. It is also the case of the appellants that, the proclamation was not affixed at the site; besides, the names of the judgment- debtors and description of the property was also erroneously mentioned in the proclamation. However, in the same application in ground "N", it is stated that the petitioners are prepared to pay 5% of the auction price and thus, the sale on this account be set aside under Order 21, rule 89, C.P.C. The learned trial Court while passing the order dated 26-3-2001, accepted the offer of the appellants and directed them to deposit 5% of the auction price within 15 days and in case such amount, is not so deposited, the sale shall be deemed confirmed. However, the appellants have not complied with the order, resultantly, vide order dated 12-4-2001, the impugned order, their objections have been dismissed and sale in favour of respondent No,2 has been confirmed.
2. Learned counsel for the appellants contends that, according to the application under Order 21, rule 90, C.P.C., the appellants had taken certain pleas of material illegalities and fraud of publication in conducting the sale, therefore, the sale was liable to be cancelled under the said rule, but the learned Court below vide order dated 26-3-2001, had erroneously directed the appellants to make the payment of 5% and in failure thereof, has dismissed their objections and confirmed the sale.
3. We have heard the learned counsel for the parties. Suffice it to say that, according to sub-rule 2 of rule 89, it is condition precedent that, where a person applies under rule 90 to set aside the sale, unless he withdraws his application, cannot be permitted to take the benefit of rule 89. From the tenor of order dated 26-3-2001, it is clear that the appellants gave up their grounds of attack on the sale under rule 90 and had conceded to the offer made in the same application to deposit the amount of 5% and for this, they were granted 15 days time, but having failed to do so, their objections have been dismissed and sale has been confirmed. We do not find any illegality in the order, because once having made offer to deposit 5% in terms of rule 89, the appellants shall be deemed to have given up their plea of rule 90. This, as mentioned earlier, is also very much clear from the order dated 26-3-2001. Resultantly, as the appellants have not complied with the order of deposit of 5%, their appeal has no merits and is hereby dismissed.