JAGAT NARAYAN, J.—This is an execution second appeal by the legal representatives of Dulichand judgment-debtor against an order of the executing court dismissing their application for setting aside an execution sale which was confirmed on appeal by the District Judge, Bikaner. 2. The facts relevant for the disposal of this appeal are these. On 24.9.56 a decree for Rs. 9,677.8.0 together with costs and future interest was passed against Duli Chand in favour of the decree-holder-respondent. He put this decree into execution on 21.11.58. On 17.11.58 the total amount due against the judgment-debtor under the decree came to Rs. 14,657.4.0. It was prayed that the decree be executed by the attachment and sale of a house and a Nohra belonging to the judgment-debtor situated in village Bidasar. These two properties were attached in execution of this decree and were put to sale on 17.5.61. On 12.5.61 the executing court granted permission to the decree-holder to bid under Order 21 Rule, 72 C.P.C. The Sales Amin declared the sale in favour of the decree-holder on 17.5.61 for a sum of Rs. 31,000/-. The decree-holder did not deposit one-fourth the purchase money forthwith. Nor did the Sales Amin call upon him to do so. The total amount payable to him on the decree on the date of the sale came to Rs. 16,066.33. The decree-holder had another decree against the judgment-debtor the amount of which came to Rs. 11,464.75 on 17.11.58. He applied for the execution of this decree also by the attachment and sale of the same house and Nohra and also prayed for rateable distribution out of the sale proceeds of the first decree mentioned above. The executing court passed an order of rateable distribution on 21.5.60 in his favour. The amount of this second decree on the date of the sale came to Rs. 12,534.96. 3. When the papers relating to the sale were put up before the executing court on 18.5.61 a sum of Rs. 461.21 was found to be the balance of the purchase money which the decree-holder had to deposit as follows:— Total amount payable on the two decrees Rs. 28,601.29 Poundage fees ... ... ... ... Rs. 1,937.50 Balance payable ... ... ... ... Rs. 461.21 Total: Rs. 31,000.00 The decree-holder deposited the sum of Rs. 461.21 on the same day. 461.21 was found to be the balance of the purchase money which the decree-holder had to deposit as follows:— Total amount payable on the two decrees Rs. 28,601.29 Poundage fees ... ... ... ... Rs. 1,937.50 Balance payable ... ... ... ... Rs. 461.21 Total: Rs. 31,000.00 The decree-holder deposited the sum of Rs. 461.21 on the same day. The sale was confirmed after a month and possession was delivered to the decree-holder over the property which was sold to him. 4. The judgment-debtor filed objections under O. 21, R. 90 C.P.C. which were all dismissed by the executing court. He preferred an appeal which was also dismissed. The present execution second appeal was then filed. Out of the grounds taken in the memorandum of appeal only one was urged and that too faintly. That was that the service of notice under O. 21 R. 22, C.P.C. was defective inasmuch as it was published only two days before the judgment-debtor was called upon to appear in court to prefer his objections. A perusal of the record goes to show that the judgment-debtor used to reside both at Ratangarh and at Calcutta. Attempts were made to serve the notices by both his addresses. It has not been suggested that the addresses given by the decree-holder were not correct. But the judgment-debtor chose to evade service. The executing court was accordingly compelled to have the notice served by publication in a local news-paper. Dulichand did not appear in court to make a statement that when the publication was made he was not residing at Ratangarh. Under the circumstances it is idle for the learned counsel for the appellants to contend that the publication of notice under O. 21, R. 22 C.P.C. was in any way defective. 5. The case was heard in part on 2.9.63 and was then adjourned for a month. It was on the adjourned date of hearing that the learned counsel for the appellants raised a fresh legal point which was not taken by him in the grounds of appeal. 5. The case was heard in part on 2.9.63 and was then adjourned for a month. It was on the adjourned date of hearing that the learned counsel for the appellants raised a fresh legal point which was not taken by him in the grounds of appeal. It was contended that the sale was a nullity as the decree-holder-auction purchaser failed to deposit one-fourth of the purchase price as required by O. 21, R. 84(1) C.P.C. It was argued that the provision of that section is mandatory even where the purchaser is the decree-holder who has been permitted to bid at the auction under O. 21 R. 72 C.P.C. Reliance was placed on the decision of a Division Bench of this Court in Mst. Magi Vs. Babulal (1) and on the decision of a learned Single Judge in Poonamchand Vs. Sumerchand(2). 6. Both these decisions are distinguishable on facts. They are based solely on the decision of their Lordships of the Supreme Court in Manilal Mohanlal Vs. Sayed Ahmed(3) and do not intend to lay down any law different from that laid down by their Lordships. In the case before their Lordships immovable property which was subject to a mortgage was sold by the executing court free of the encumbrance even though the mortgagee had neither filed any suit nor obtained any decree to recover the money due on the mortgage. This was wholly erroneous. Further the executing court treated the mortgagee as if he were a decree-holder within the meaning of R. 72 and 84 of O. 21. Permission was granted to him to bid for the property when in fact no such permission was needed as he was not a decree-holder. Further he did not deposit 25 per cent of the purchase money when the sale was declared in his favour. Their Lordships held that R. 84(1) was mandatory unless the purchaser happens to be the decree-holder. It was made quite clear by their Lordships that R. 84(1) was not mandatory where the purchaser was the decree-holder. The following observations occurring in paras (7) and (8) of the A. I. R. report may be referred to in this connection: — "(7) ......... It was made quite clear by their Lordships that R. 84(1) was not mandatory where the purchaser was the decree-holder. The following observations occurring in paras (7) and (8) of the A. I. R. report may be referred to in this connection: — "(7) ......... The moment a person is declared to be the purchaser, he is bound to deposit 25 per cent of the purchase money unless he happens to be the decree-holder, in which case the court may not require him to do so (R. 84). (8) The provision regarding the deposit of 25 per cent by the purchaser other than the decreeholder is mandatory as the language of the rule suggests. The full amount of the purchase money must be paid within fifteen days from the date of the sale but the decree-holder is entitled to the advantage of a set off. The provision for payment is, however, mandatory. (Rule 85). If the payment is not made within the period of fifteen days, the court has the discretion to forfeit the deposit and there the discretion ends but the obligation of the court to resell the property is imperative." 7. In Mst. Magi Vs. Babulal (1) the purchaser was not the decree-holder. This decision is therefore no authority for the proposition canvassed on behalf of the appellants. In Poonamchand Vs. Sumerchand(2) however the purchaser was the decree-holder and the purchase price exceeded the decretal amount. There were other decree-holders also who were entitled to rateable distribution under sec. 73. The decree of one Hastimal was being executed for Rs. 5,610.10.0. In execution of this decree the house of the judgment-debtor was put to sale and was sold in favour of Hastimal for Rs. 1 ,931/- Hastimal having obtained permission under 0.21, R. 72. Out of the assets obtained by sale Hastimal was only entitled to a sum of Rs. 793-13-0 and the balance of Rs. 979-13-0 was payable to the other decree-holders. Hastimal did not deposit one-fourth of the purchase price under R. 84. Nor did he deposit the balance of the purchase price by the 15th day as required by R. 85. The learned Single Judge set aside the sale following the decision of their Lordships in Manilal Mohanlal Vs. Sayed Ahmed(3). 979-13-0 was payable to the other decree-holders. Hastimal did not deposit one-fourth of the purchase price under R. 84. Nor did he deposit the balance of the purchase price by the 15th day as required by R. 85. The learned Single Judge set aside the sale following the decision of their Lordships in Manilal Mohanlal Vs. Sayed Ahmed(3). He quoted the observations of their Lordships to the effect that the provision regarding the deposit of 25 percent by the purchaser other than the decree-holder is mandatory. But in the latter part of his judgment he appears to have overlooked the fact that their Lordships held that the deposit of 25 per cent, was only mandatory in the case of a purchaser other than the decree-holder. He observed— "On a careful consideration, I think that this argument is not correct, because R. 84(2) lays down that even though the decree-holder may be entitled to set-off the purchase money under R. 72, it is for the court to dispense with requirements of sub-rule (1). In other words, the decree-holder purchaser cannot claim as of right that since he is entitled to set-off certain amount, he is not bound by the rule of depositing 25 per cent of the purchase money. The Rule, as framed, clearly indicates that the power is given to the court to exempt the decree-holder from making the deposit of 25 per cent in a suitable case and if for any reason the court requires the decree-holder to deposit the amount of 25 per cent of the purchase money, he is bound to obey its order. The dispensation with the requirements of sub-rule (1) by the court may be express or implied, but the power is given Only to the court and not to the decree-holder purchaser. If he fails to abide by the order of the court, the mandatory provision of sub-rule(1) would apply to him as much as to any other purchaser and there would be no valid sale in his favour." 8. The provision of R. 85 is however mandatory both in the case of a stranger purchaser and in the case of a decree-holder purchaser and as this rule had not been complied with the sale was rightly held to be a nullity by the learned Single Judge. R. 84 runs as follow:— "R. 84. The provision of R. 85 is however mandatory both in the case of a stranger purchaser and in the case of a decree-holder purchaser and as this rule had not been complied with the sale was rightly held to be a nullity by the learned Single Judge. R. 84 runs as follow:— "R. 84. (1) On every sale of immovable property the person declared to be the purchaser shall pay immediately after such declaration a deposit of twenty-five per cent on the amount of his purchase-money to the officer or other person conducting the sale, and in default of such deposit, the property shall forthwith be re-sold. (2) Where the decree-holder is the purchaser and is entitled to set off the purchase-money under rule 72, the Court may dispense with the requirements of this rule." 9. The requirement of sub-rule (1) can be dispensed with by the court under sub-rule(2). That itself shows that the provision contained in sub-rule (1) is not mandatory. | 10. It will thus be seen that the provision of r. 84(1) is not mandatory where the purchaser is the decree-holder who has been permitted to bid under r. 72. Failure to deposit one-fourth of the purchase money by the decree-holder on the declaration of the sale by the Sales Amin could therefore at the worst only amount to an irregularity which did not prejudice the judgment-debtor in any way as the decretal amount which he was entitled to set off under r. 72(2) was more than one-fourth the purchase money. Further the balance which the decree-holder could have deposited by the fifteenth day was deposited on the very next day. 11. Next I come to the question as to whether in the circumstances of the present case the executing court should be deemed to have dispensed with the requirement of r. 84(2) on the facts of the present cases. That the dispensation may be implied cannot admit of any doubt. Sub-rule (2) of r. 84 does not require an express order for dispensation like sub-rule (1) of r. 72 which requires express permission to bid. It was observed by the learned Single Judge in Poonamchands case (2) that the dispensation may be implied. It was so held by a Division Bench of this Court in Kanhaiya Lal Vs. Sansmal(4) where the point specifically arose for the decision. It was observed by the learned Single Judge in Poonamchands case (2) that the dispensation may be implied. It was so held by a Division Bench of this Court in Kanhaiya Lal Vs. Sansmal(4) where the point specifically arose for the decision. In the case before their Lordships the purchase price was less than the decretal amount. They observed at page 41 :— "Reading these two rules (72 and 84) together, it seems to us plain common sense that where a decree-holder is permitted to bid at an auction, there is an implied dispensation also that he need not deposit 25% of the purchase money unless the sale price is more than the decretal amount. Where the sale price is more than the decretal amount, the decree-holder must deposit the excess up to 25% of the purchase money, depending upon the excess of the sale price over the decretal amount. There is, in out opinion, no sense in insisting upon the decreeholder depositing 25% of the purchase money, when the purchase-money is less than or only equal to decretal amount." 12. The observations with regard to a case in which the sale price is more than the decretal amount are obiter. R. 72 runs as follows: — R. 72. (1) No holder of a decree in execution of which property is sold shall, without the express permission of the Court, bid for or purchase the property. (2) Where a decree-holder purchases with such permission, the purchase-money and the amount due on the decree may, subject to the provisions of sec. 73, be set off against one another, and the Court executing the decree shall enter up satisfaction of the decree in whole or in part accordingly. (3) Where a decree-holder purchases, by himself or through another person, without such permission, the Court may, if it thinks fit, on the application of the judgment-debtor or any other person whose interests are affected by the sale, by order set aside the sale ; and the costs of such application and order, and any deficiency of price which may happen on the re-sale and all expenses attending it, shall be paid by the decree-holder." 13. Sub-rule (2) of the above rule gives the decree-holder a right to set-off the decretal amount against the purchase price in a case in which he has been permitted to bid at the auction under sub-rule (1). Sub-rule (2) of the above rule gives the decree-holder a right to set-off the decretal amount against the purchase price in a case in which he has been permitted to bid at the auction under sub-rule (1). In my opinion therefore no express order allowing set-off is required. But the decree-holder is entitled to set off the amount of decree against the purchase price as of right only at the stage of R. 85 and not at the stage of R. 84. At the stage of R. 84 he should deposit one-fourth the purchase price unless the court expressly or impliedly dispenses with the requirement. The court has power to dispense with the requirement of R. 84(1) even in a case where the sale price is more than the decretal amount. No hard and fast rule can be laid down limiting the discretion conferred on the executing court under R. 84(2). Nor does it appear to me that in making the above observation their Lordships intended to lay down any such rule. It seems to me that the observations made by them are only applicable in a case where the court does not choose to dispense with the requirement of R. 84(1). 14. The next question to be considered is the stage at which the court is to apply its mind as to whether or not to dispense with the requirement of R. 84(1). The court can only exercise its discretion under R. 84(2) properly when it comes to know the amount for which the sale is declared by the Amin. This it only comes to know when the papers are put before it after the declaration of the sale for its acceptance by the court. As was held in Gorusingh vs. Deokishan(5) the sale under R. 84(1) binds the purchaser if the Sales Amin declares it in his favour, but the court is not bound by it till it has exercised its discretion, expressly or impliedly, under condition No. 3 contained in the sale proclamation (Form No.29, App.E.C.P. Code). The court can decline to accept the highest bid. however, only on the ground that the price offered is clearly inadequate. The court can decline to accept the highest bid. however, only on the ground that the price offered is clearly inadequate. At the time of accepting the sale declared by the Sales Amin the executing court should consider if having regard to the purchase price and the decretal amount it should dispense with the requirement of R. 84(1) wholly or in part. If the court does not dispense with the requirement then the decree-holder purchaser should forthwith deposit one-fourth the price to comply with the requirement of R. 84. As has already been mentioned above the requirement of R. 84(1) is not mandatory where the purchaser is the decree-holder and a little delay in the deposit of 25 per cent, of the purchase price occasioned by the time taken by the court to make up its mind as to whether or not the requirement of R. 84(1) should be dispensed with cannot prejudice the judgment-debtor in any way and will consequently not affect the sale. 15. In the present case the sale was declared by the Sales Amin on 17.5.61. Papers relating to the sale were put up before the executing court for its orders on 18.5.61. On the same day the entire balance required to be deposited under R. 85 was deposited. The court could only decide on 18.5.61 whether or not it could dispense with the requirement of R. 84(1). In the peculiar circumstances of this case the question as to whether or not the requirement of R. 84(1) was dispensed with under R. 84(2) becomes immaterial. But should it be necessary to record a finding on the point I would hold that the executing court impliedly dispensed with the requirement of R. 84(1) since it accepted the sale in favour of the decree-holder and did not require him to make a deposit under R. 84(1). But as I have said above this question is purely of a theoretical importance as the requirement of R. 84(1) is not mandatory in the case of a decree-holder-purchaser. 16. In the result the appeal is dismissed with costs.