JUDGMENT : 1. Rule, with the consent of the parties, made returnable forthwith and heard. 2. The above petition filed under Articles 226 and 227 of Constitution of India takes exception to the order dated 21/01/2011 passed by the Executing Court i.e. 3rd Jt.Civil Judge (Sr.Dn.), Nagpur in Special Darkhast No.227 of 2008, by which the application filed by the petitioner invoking Order 21 Rule 90 of the C.P.Code, came to be rejected. 2. The relevant facts which are necessary to be cited are stated thus The petitioner herein is the judgment-debtor Having suffered a decree dated 21/09/2007 in a suit filed before the Delhi High Court being Civil Suit (OS) No.1534 of 2005. The said decree was put for the execution and since the petitioner did not have property within the jurisdiction of the Delhi High Court, the decree was transmitted to the court wherein the property of the petitioner was situated. The said proceedings came to be marked as Special Darkhast No.227 of 2008. The property in question being a plot of land held on lease basis by the petitioner in M.I.D.C. Nagpur was attached pursuant to the execution proceedings and the said property was put to sale. The petitioner had filed an application under Order 21 Rule 58(1)(a) of the C.P. Code questioning the said attachment as well as proclamation of sale by the Executing Court, which application came to be rejected, which resulted in the petitioner filing Writ Petition No.3752 of 2010 in this court questioning the said decision. This court, in view of the fact that order in terms of Rules 64 and 66 of Order 21 of C.P.C. were already passed, held that the application filed under Order 21 Rule 58 of C.P. Code was misconceived and therefore dismissed the petition by order dated 12th October, 2010. In the said order dated 12th October, 2010, this court has further observed in the said order that “Even subsequent order granting time to deposit balance amount is not assailed before it by moving necessary application.” 3. It appears that thereafter the petitioner moved an application invoking Order 21 Rule 90 of the C.P. Code to question the same on the ground that there was a noncompliance of Order 21 Rule 85 of C.P. Code. The petitioner thereby alleged irregularities in the sale of the property in question. It appears that thereafter the petitioner moved an application invoking Order 21 Rule 90 of the C.P. Code to question the same on the ground that there was a noncompliance of Order 21 Rule 85 of C.P. Code. The petitioner thereby alleged irregularities in the sale of the property in question. The said application came to be numbered as Exh.94 in the said Special Darkhast No.227 of 2008. The said application was opposed by the decree-holder by filing reply Exh.99. The decree-holder mentioned the synopsis of the course of events that had occurred after the decree was transmitted to the concerned court for execution. The Executing Court by the impugned order dated 21/01/2011 has dismissed the said application inter alia on the ground that no substantial injury can be said to have been caused to the petitioner/judgment-debtor on account of the alleged irregularities. The Executing Court also observed that the auction purchaser has deposited the sale price in the court and the decree-holder has withdrawn the amount of the decree from the court and now only the residual amount is lying in the court. As indicated above, it is this order which is impugned in the present petition. 4. On behalf of the petitioner, the principal contention of Shri Kshirsagar, the learned counsel for the petitioner, is that there is breach of the mandatory provisions of Rule 85 of Order 21, in as much as, the sale price has not been deposited within fifteen days as mandated by the said Rule 85 of Order 21 and that the auction purchaser has not set out the reasons were, which was beyond his control, for not depositing the said amount within the stipulated time. The learned counsel contended that in view of this, the auction sale would have to be set aside and de novo auction would have to be ordered. 5. In support of the said contention, the learned counsel for the petitioner relied upon the judgment of the Apex court reported in 1997(2) Civil LJ 341 in the matter of Balram vs. Ilam Singh and ors., wherein it has been held that noncompliance of Rule 85 of Order 21 render auctionsale void. The learned counsel for the petitioner has further relied upon the judgment of the Apex Court reported in AIR 1999 SC 96 in the matter of Usmansab Hatelsahab vs. R.L. Meharwade and ors. The learned counsel for the petitioner has further relied upon the judgment of the Apex Court reported in AIR 1999 SC 96 in the matter of Usmansab Hatelsahab vs. R.L. Meharwade and ors. wherein it has been held that the nonpayment of the purchase money within 15 days would entail the setting aside of the sale. Relying upon the said judgments, the learned counsel contended that the sale in question involved in the said proceedings would have to be set aside. 6. Per contra, it has been submitted by Shri Rizwy, the learned counsel for the decree-holder and Shri Verma, the learned counsel appearing for the auction purchaser that the facts in the instant case stand apart from the facts involved in the Apex court judgments. The learned counsel contended that in the instant case the execution of the decree has had protracted course and the petitioner at every stage has tried to see that the decree in question is not executed and the fruits of the decree are not enjoyed by the decree-holder. The learned counsel further contended that in the earlier round of litigation being Writ Petition No.3752 of 2010, this court did not countenance the contentions raised by the petitioner in respect of the alleged irregularities committed in the sale of the property in question and further the petitioner is now disentitled to raise the said grounds on the application of the principles of Res-judicata or principles analogous thereto. 7. Having heard the learned counsel for the parties, I have bestowed my anxious consideration to the rival contentions. As indicated above, it is the decree passed by the Hon’ble Delhi High Court which has been transmitted to the concerned court in this State for execution. The attachment of the property as well as the proclamation of sale was not questioned by the petitioner. In fact, the application filed by the petitioner under Order 21 Rule 58 of C.P. Code was rejected by the Trial Court which rejection was confirmed by the court in Writ Petition No.3752 of 2010. The attachment of the property as well as the proclamation of sale was not questioned by the petitioner. In fact, the application filed by the petitioner under Order 21 Rule 58 of C.P. Code was rejected by the Trial Court which rejection was confirmed by the court in Writ Petition No.3752 of 2010. It is pertinent to note that the purchaser in the auction sale i.e. the auction purchaser has deposited the entire amount on 19/8/2010 i.e. during the pendency of the earlier Writ Petition No.3752 of 2010, and hence during the course of the proceedings in the earlier round, the petitioner did not raise any challenge as is sought to be raised now in the instant petition by way of this application under Order 21 Rule 90 of the C.P. Code. If the petitioner was so aggrieved by the noncompliance of Rule 85, he ought to have made the said ground a ground of challenge to the auction sale in the earlier round of proceedings. This court in the said order has, in terms, observed that the petitioner has not assailed the subsequent order granting time for depositing the balance amount by moving necessary application. There is, therefore, merit in the submission of the learned counsel for the respondents that the petitioner would not be entitled to raise the said ground in the instant proceedings on the application of the principles of res judicata or the principles analogous thereto. In my view, if not the principles of res judicata, the principles of constructive res judicata are squarely applicable in the facts of the present case, as the petitioner, in view of the fact that the amount was already deposited by the auction purchaser at the time of the earlier round of proceedings, ought to have made the said ground, a ground of challenge to assail the auction sale. Having not done so, in my view, it is not open to the petitioner to challenge the sale on the said ground at this stage. Having not done so, in my view, it is not open to the petitioner to challenge the sale on the said ground at this stage. Though the proposition of law that noncompliance of Rule 85 is fatal to an auction sale is well settled by the pronouncements of the Apex Court, in the facts and circumstances of the present case namely; the fact that the amount was deposited on 19/8/2010 and the decretal amount has already been withdrawn and now what remains is only the residual amount in the court, in my view, the clock cannot be allowed to be turned back. Hence, I do not find any merit in the above petition which is accordingly dismissed. Rule discharged. At this stage, the application for continuation of the order staying grant of possession is prayed for. In the facts and circumstances of the case, the prayer to that effect is rejected.