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PETITIONER: KAYJAY INDUSTRIES (P) LTD.

       Vs.

RESPONDENT: ASNEW DRUMS (P) LTD. & ORS.

DATE OF JUDGMENT20/03/1974

BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. PALEKAR, D.G. BHAGWATI, P.N.

CITATION:  1974 AIR 1331            1974 SCR  (3) 678  1974 SCC  (2) 213  CITATOR INFO :  R          1984 SC1471  (26,54)

ACT: Code  Of  Civil Procedure (Act 5 of 1908),  O.21,  r.90  and State  Financial  Corporation Act, 1951,  Sec.  31--Material irregularity  in conduct of sale and substantial  injury  to judgment--debtor, what are.

HEADNOTE: The  State Finance Corporation lent a sum of Rs. 10 lacs  to the  first respondent on the security of a mortgage  of  its land etc.  The first respondent having failed to repay,  the Corporation  applied to the District Court under  the  State Financial  Corporation Act, 1951, for recovering the  amount by  attachment  and sale of the mortgaged  properties.   The sale  proclamation was settled after notice to the  parties, and   after  several  adjournments,  caused  by  the   first respondent’s dilatory tactics, the sale was held.  The court felt  that  it was better to have some valuation  report  to serve  as  a basis and to guide it in deciding  whether  the offer  of  Rs.  11,10,000 was  grossly  unjust.   The  first respondent  did  not  have the  properties  valued  but  the (Corporation  had  the properties valued and  the  mortgaged properties were valued at about Rs. 17 lacs.  Thereafter  an auction  was  again held and the appellant was  the  highest bidder.   His offer was less by about Rs. 40,000/- than  the amount on the previous occasion.  He however agreed to raise the  offer  to Rs. 11,50,000/- and the court  concluded  the sale at that amount.  The first respondent applied under  0. 21,  r.  90,  C.P.C.  for setting aside  the  sale  but  the application  was dismissed.  His appeal was allowed  by  the High Court. Allowing the appeal to this Court. HELD  : Under s. 32(8) of the Act, the Civil Procedure  Code is attracted to proceedings for the realisation of the  dues of the Corporation.  Therefore, 0. 21, r. 90 ,was applicable and if there was any material irregularity in the and if  it caused a substantial injury to the judgment-debtor,  ,aside. Where  a court mechanically conducts the sale not  bothering conduct  of  the sale the sale could be set to  see  if  the offer is too low and a better price could have been obtained

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and if in factthe price is substantially inadequate,  there is both irregularity and injury. But atthe  same  time  the court should not go on adjourning the sale till a  goodprice isgot  as  otherwise,  decreeholders can  never  get  the property  of  judgment debtors sold.  There is  always  con- siderable difference between the court sale price and market price.  A court sale ’.is a forced sale, and notwithstanding the competitive element of a public auction, the best  price is not always forthcoming.  A valuer’s report though good as a  basis,  is not as good as an actual offer and  there  are bound  to  be  variations  within  limits  between  such  an estimate,  however  careful, and the real bids  by  seasoned business:man.   Mere inadequacy of price cannot  demolish  a court  sale.   Further, if court ,sales are  too  frequently adjourned  with  a view to obtaining a  still  higher  price prospective  bidders  will  lose faith in  the  actual  sale taking place and may not attend at the auction’Nor is  it right  to judge the unfairness of the price in the light  of the :subsequentevents   which  were  not   within   the knowledge of the executing court at the time ofthe  sale. What  is  expected  of the court is  to  make  a  realisitic appraisals  of  the  factors  in  a  pragmatic  way  and  if satisfied  that  in  the  given  circumstances  the  bid  is acceptable  it  should  conclude the sale.   The  court  may consider  the  fair  value  of  the  property,  the  general economic  trends, the large sum required to be  produced  by the  bidder, the formation of a syndicate, the  futility  of postponements and the possibility of litigation and  several other  factors depending on the facts of each case.  If  the court   has  fairly  applied  its  mind  to   the   relevant considerations  while  accepting  the final bid  it  is  not necessary to give a speaking order nor can its order be exa- mined meticulously. [682 A-E; 683C; 684 A-F] In  the  present case, the executing  court  had  admittedly declined  to  affirm  the  highest  bids  on  the   previous occasions  in  its anxiety to secure a better  price.   Well known industrialists in the public and private sectors  knew about  it  and bid at the auction.  All  interested  parties were present at the auction and no one raised any  objection regarding  the conduct of the sale.  The  Corporation  could not  be  put  off indefinitely in  recovering  its  dues  on baseless  expectations  and  distant  prospects.  The   sale proceedings  had  been  Pending  too  long  and  the   first respondent  would  not,  even when  given  the  opportunity, produce  buyers  by private negotiation.  He ,did  not  even produce a valuer’s report.  He by his litigious attitude has contributed 679 to  possible  buyers  being afraid  of  hurdles  thereafter. Therefore,  it  must be held that the  executing  court  had committed  no  material irregularity in the conduct  of  the sale in accepting the highest offer of the appellant and  in concluding  the  sale at Rs. 11,50,000/- though  the  market value may be over Rs. 17 lacs. [684G-685B] Nayalkha  and  Sons  v.  Ramanya Das,  [1970]  3  S.C.R.  1, referred to. (2)  The appeal is not against the approval of the  sale  by the  executing court but against the High Court’s  order  in appeal  against  an order refusing to set  aside  the  sale, under  0.  21,  r.  90.   Therefore,  the  question  of  the appellate  court’s power to review the discretion  exercised by the trial court does not arise. [685F] Ward v. James, [1966] 1 Q.B. 273 at 293, referred to. [It is odd that financial Organisation in the public  sector should  have  readily  lent huge amount of Rs  10  lacs  and

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struggled  for  several years to recoup  the  amount.   This aspect of the matter should receive the anxious attention of the  concerned  authorities  so that  public  money  may  be handled  by public servants with public  responsibility  and for public benefit. [685D-E]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  2150  of 1972. From  the judgment and decree dated the 7th  /8th  February, 1972 of the Bombay High Court in Appeal No. 152 of 1970. Som  Nath Chatterjee , S. N. Saraf, Pramod Soroff and H.  K. Puri, for the appellant. Hardayal Hardy, Suresh Parekh and B. Dutta, for respondents 1  and 2, M. N. Phadke, Rameshwar Nath and  Rajinder  Narian for respondents. 4 & 5. The Judgment of the Court was delivered by KRISHNA   IYER,  J.   The  appellant  in  this  appeal,   by certificate is the auction purchaser whose sale has been set aside  by the High Court in reversal of the decision of  the Executing  Court  which  dismissed the  application  of  the judgment  debtor (first respondent herein) under  Order  XXI rule  90,  C.  P. C. Although many  points  were  urged  and considerable time was taken in the arguments, attention  was principally focussed on one issue which we will mainly  deal with.  Of course, a brief but sufficient reference will also be made to the other points. The  Maharashtra State Finance Corporation (for  short  "the Corporation") plays the role of decree-holder in the present case.   It  had  lent a sum of Rs. 10  lakhs  to  the  first respondent,  which is a drum manufacturing  private  limited company, in May 1961, on the security by way of mortgage  of its  land, factory building, plant and machinery situate  at Kalwa,District  Thana.  Respondents 2 and 3  had  guaranteed the  repayment of the said loan.  It is also seen  from  the facts   that  in  or  about  1964  the  Dena  Bank,  now   a nationalised   institution   but  not  a  party   to   these proceedings had also advanced to the first respondent a  sum of Rs. 20 lakhs presumably on the security of its plant  and machinery  and raw material stocks, although this aspect  is not  quite  clear from the record and is  not  perhaps  very relevant  for  the disposal of this appeal.  We  would  only like  to make it clear that the rights and remedies  of  the said  Bank, whatever they are, against the appellant of  the other respondents, are not dealt with in this appeal. 680 The  first  respondent  which  had taken  the  loan  for  an industrial  purpose defaulted in making repayment and  so  a notice  was  issued  to it by  the  fourth  respondent,  the Corporation, under s. 30 of the State Financial  Corporation Act,  1951  (hereinafter referred to as the  Act)  demanding prompt  discharge of the liability under the-  mortgage  and indicating  that  in default of  payment  legal  proceedings under  s.  31  of  the Act to  realise  the  dues  would  be undertaken.   No fruitful response was forthcoming  and  the Corporation,  therefore, made an application,  Miscellaneous Application  No. 75 of 1965, in the District  Court  against respondents  1, 2 and 3, under s. 31 of the Act, seeking  to levy by attachment and sale of the properties covered by the mortgage,   the  amounts  due  to  it.   The  total   amount recoverable was stated to be a little over Rs. 16 lakhs, but we are not concerned with the figure as it is not in dispute before us.

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In  June  1966  the  Corporation moved  the  Court  for  the appointment  of a receiver to take charge of the  properties which  had been by then attached and to sell them  by  court auction.  A receiver was duly appointed, who entered on  his duties   and  took  steps  for  conducting  the   sale.    A proclamation  of  sale  was  settled  after  notice  to  the parties, on December 5,1967, and the sale was fixed to  take place  on  January 8, 1968.  However,the sale did  not  take place that day and the happenings thereafter culminating  in the sale on September 3, 1969, wherein the present appellant was  the  highest bidder, and consequent purchase,  are  the subject matter of the present appeal. We  will take a close-up of certain pivotal events on  which the  fate of the appeal depends.  With the consent  of  both parties,  the Court decided to sell in two lots,  presumably because that would fetch a better price, one lot being  made up  of the land and what was permanently fixed thereon,  and the  other the plant and machinery.  There is no doubt  that the  items sold are of considerable value, land in that  in- dustrial  area  escalating  in price  as  time  passed,  the machinery  being  imported and costly and the  industry  for which  they were needed being of growing importance for  the country.   Even so, let us look at the panorama of  forensic events  as  they unfolded from stage to stage.   On  january 11,1966  the  order for sale was made.  Later  the  judgment debtor  applied  for time to negotiate a  private  sale  but failed to find a suitable buyer. On January 12, 1967,  the Corporation applied for the sale of theentire  unit.    The sale was fixed to take place on January 8, 1968when,   at the instance of the Dena Bank, it was Postponed on the  plea that.  the  machinery not fixed to the earth  had  not  been shown  separately.   In August, 1968,  the  judgment  debtor again  prayed for postponement to enable him to raise  funds to  discharge  the  debt privately and  the  District  Judge acceded  to the request conditionally.  The prayer was  made on August 7, 1968 and the Court directed the judgment debtor to  deposit  Rs.  1-1/2  lakhs  by  October,  15,  1968  and postponed  the  sale  till the last week  of  October.   The judgment debtor could not deposit the preliminary sum by the time fixed.  Even so, the sale did not take place on October 29,  1968  since  the Corporation and the  Bank  wanted  the description   of  the  machinery  to  be  inserted  in   the proclamation of sale. 681 Early in December the judgment debtor applied that the  sale should be of the whole property in one lot, which was turned down  by the Court on December, 12, 1968 since the  sale  in two  lots was a course already consented to by him  and  the move  was  purely dilatory.   However,  the  judgment-debtor moved  the  High Court and obtained stay of  sale,  and  the appeal  was withdrawn by him on February 26, 1969  whereupon he filed a suit for declaration that the order for sale  was without  jurisdiction.   When  he  found  that  an   interim injunction against holding the sale was refused, he withdrew the  suit on April 16, 1969.  Naturally, the sale fixed  for May  1,  1969  could  not take place  for  want  of  bidders although  a  neighbouring industrial concern,  Mukund  Iron, gave  an offer of Rs. 2.20 lakhs for the land and  buildings only.  The next attempt was to hold the sale on May 16, 1969 and the highest bids then offered were Rs. 2 lakhs for  land and  building and Rs. 80,000/-for the machinery.  The  Court considered  the  bids too low and preferred to  adjourn  the sale.  This circumstance certainly discloses that the  Court was  alert  to see that a fair price was obtained,  and  the fact that it was a court auction was not allowed to  operate

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to  the detriment of the judgment debtor.  A sale was  again attempted  on June 5, 1969 when the highest offers for  land and  building  went up to Rs. 2.60 lakhs and  for  machinery Rs.2.  10 lakhs.  The judge endeavoured to secure  a  better price  since  the Corporation pleaded that the  offers  were inadequate.   In the circumstances, the judge postponed  the sale. We now come closer to the final.  On August 28, 1969 a  sale was held and the highest bids for land and buildings went up to Rs. 5.70 lakhs and for machinery 5.40 lakhs.  It must  be noted that at this time the Judge, who was then holding  the sale, was not the presiding officer but another judge, since the  former was on leave. it was felt by the latter that  it would be better to have some valuation report to serve as  a basis and to guide the court in concluding whether a grossly unjust  offer was being fobbed off on it.  The Receiver  who was  in  charge requested both the judgment debtor  and  the Corporation to get valuation reports from competent  valuers and  the sale itself stood adjourned.  The  judgment  debtor did  not  bother  to  have the  Properties  valued  but  the Corporation secured the services of a competent valuer, M/s. Corona  Electricals  of Bombay, who estimated the  land  and buildings to be worth Rs. 10,46,096/- and the machinery  Rs. 7,02,000/-.   The  total  value  thus  arrived  at  was  Rs. 17,48,096/-.   In the light of various facts, including  the absence  of  an  alternative  evaluation  report  from   the judgment  debtor’s side, these Corona figures  were  rightly treated  by both courts as tentatively sound.   The  auction held  on  September 3, 1969, however,  fetched  the  highest offer  for  the  two  lots of  only  Rs.  5,65,000/-and  Rs, 5,00,000/-  respectively,  in the latter case  Rs.  40,000/- less  than  on the previous  occasion.   After  considerable persuasion  by the Judge, the appellant agreed to raise  the offer  for  both  lots  together to  a  gross  sum  of-  Rs. 11,50,000/-  and  making an intelligent guess on  the  given circumstances  the  Court approved the sale,  which  is  now being  challenged in these proceedings as an insensible  and injurious  sanctioning  of the sale,  ignoring  the  hopeful prospects  of higher prices had the auction  been  adjourned and better and fuller publicity given. 682 Certain salient facts may be highlighted in this context.  A court  sale  is  a forced  sale  ’and,  notwithstanding  the competitive  element of a public auction, the best price  is not often forthcoming.  The judge must make a certain margin for this factor.  A valuer’s report, good as a basis, is not as  good  as an actual offer and  variations  within  limits between such an estimate, however careful, and real bids  by seasoned businessmen before the auctioneer are quite on  the cards.   More so, when the subject-matter is  a  specialised industrial plant, which has been out of commission for a few years, as in this case, and buyers for cash are bound to  be limited.  The brooding fear of something out of the imported machinery  going  out of gear, the  vague  apprehensions  of possible claims by,the Dena Bank which had a huge claim  and was  not a party, and the litigious sequel at the  judgment- debtor’s   instance,  have  ’scare’  value   in   inhibiting intending  buyers from coming forward with the best  offers. Businessmen  make  uncanny calculations  before  striking  a bargain  and  that  circumstance  must  enter  the  judicial verdict before deciding whether a better price could be  had by  a  postponement ,of the sale.  Indeed,  in  the  present case, the executing court had admittedly declined to  affirm the  highest  bids  made on May 16, 1969 June  5,  1969  and August 28, 1969, its anxiety to secure a better price  being

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the  main  reason.   If  court  sales  are  too   frequently adjourned  with a view to obtaining a still higher price  it may prove a self-defeating exercise for industrialists  will lose faith in the actual sale taking place and may not  care to  travel up to the place of auction being  uncertain  that the  sale  would at all go through.  The  judgment  debtor’s plea  for postponement in the expectation of a higher  price in  the future may strain the credibility of the court  sale itself  and may yield diminishing returns as was  proved  in this very case. A material circumstance which weakens the first respondent’s case  is  that on both the dates-August 28 and  September  3 Shri  B.  Paul director of the judgment debtor  company  was present ;it the auction and never voiced any grievance about the conduct of the sale or asked for its postponement on the ground  that better price may be obtained on a  later  date. Equally  significant is the fact sworn to by the  authorised officer of the Corporation that ’the valuation of the  total assets’  was around Rs. 15 lakhs ’when the  application  was made  by the petitioner Corporation for sale of  the  assets under  sec. 31 of the State Financial Corporation  Act’  and ’that  the  said  estimate was given on  the  basis  of  the information  supplied by the applicants at the time  of  the disbursal  of  the loan’.  The Dena Bank the  second  charge holder  with considerable stakes in the sale was present  on the   August  and  September  auctions  through   a   senior representative  and did not think it necessary to raise  any objection  regarding  the conduct of the sale or  the  price tendered.  Nor do the proceedings disclose an unfair  under- value  on  account of the absence of  effective  bidders  or inertness of the Judge.  On both occasions there were  about 30  or 40 bidders.  The judgment debtor. the  second  charge holder   the  Indian  Oil  Corporation  and  other   leading industrial  concerns  interested in the drum  industry  were represented.   All the bidders on the 28th August were  told of  the  next  auction date and most  of  them  participated passively 683 or  actively in the September sale.  On both the sale  dates the  judges (they were different on the two days) were  keen on  maximising the’ price.  A total of Rs.  11,10,000/-  was the  highest bid in late August and in early  September  the best  offer for lot No. 2 sagged from Rs. 5,40,000/- to  Rs. 5,00,000/-.This  downward  trend  could  have  persisted  if further postponements of sale had taken place and the  judge did his best to boost the total price to Rs. 11.5 lakhs and- finalised  it taking no chances by adjourning  the  auction. The  trend of to-day may be the silhouette of  tomorrow  and the  reduced offer for lot No. 2 this time may  well  infect lot No. I next time. The Court did a good job taking a cons- pectus of the circumstances and avoiding the ominous  maybes of  future auctions.  Such are the broad facts to which  the law must be applied.  Section 32(8) of the Act attracts  the Code  of  Civil  Procedure  as far  as  practicable  in  the realisation of the dues of the Corporation. and so it may be right to apply the provisions of Order XXI r. 90.  In  short was  there any material irregularity in the conduct  of  the sale and did it cause substantial injury to the debtor ? The  first  respondent’s  counsel  Shri  Parekh.  drew   our attention to condition No. 3 in the present proclamation  of sale which is as follows:               "The highest bidders for the two lots shall be               declared   to   be  the  purchasers   of   the               respective  lots,. provided always that he  or               they are legally qualified to bid and provided

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             that  it  shall be in the  discretion  of  the               undersigned  Receiver  holding  the  sale   to               decline acceptance of the highest bid for  any               lot when the price offered for any of the  two               lots  appears so manifestly inadequate  as  to               make its acceptance inadvisable.  The  highest               bid offered by any bidders for any of the  two               lots  shall  be subject to  the  sanction  and               approval of the District Judge Thana." Form  29  prescribed  in Appendix E  to  the  Code  contains condition  No.  3  which  is in  like  terms.   The  court’s activist obligation to exercise a discretion to make a  fair sale  out  of a court auction and avert a distress  sale  is underscored  by  this provision.  In all  public  sales  the authority must protect the interests of the parties and  the rule  is  stated  by this Court in  Nayalkha  and  Sons  vs. Ramanya Das (1) thus               "The    principles   which    should    govern               confirmation  of sales are  well  established.               Where  the  acceptance  of the  offer  by  the                             Commissioners  is subject to  confirma tion  of               the  Court  the  offerer  does  not  by   mere               acceptance   get  any  Vested  right  in   the               property  so  that  he  may  demand  automatic               confirmation  of his offer.  The condition  of               confirmation  by  the  Court  operates  as   a               safeguard  against the property being sold  at               inadequate  price  whether  or  not  it  is  a               consequence  of any irregularity or  fraud  in               the conduct of the sale.  In every case it  is               the  duty of the Court to satisfy itself  that               having  regard  to  the market  value  of  the               property  the price offered  is  unreasonable.               Unless  the  Court  is  satisfied  about   the               adequacy of the price the act of  confirmation               of the sale would not be a proper exercise  of               judicial discretion." (1) [1970] 3 S.C.R. 1. 684 Be it by a receiver, commissioner, liquidator or court  this principle must govern.  This proposition has been propounded in  many rulings cited before us and summed up by  the  High Courts.   The  expressions  ’material  irregularity  in  the conduct of the sale’ must be benignantly construed to  cover the  climax  act  of the court accepting  the  highest  bid. indeed under the Civil Procedure Code it is the court  which conducts  the  sale and its duty to apply its  mind  to  the material factors bearing on the reasonableness of the  price offered  is part of the process of obtaining a proper  price in  the course of the sale.  Therefore failure to apply  its mind to this aspect of the conduct of the sale may amount to material  irregularity.   Here  substantial  injury  without material  irregularity  is  not  enough  even  as   material irregularity not linked directly to inadequacy of the  price is  insufficient.  And where a court  mechanically  conducts the  sale or routinely signs assent to. the sale papers  not bothering to see if the offer is too low and a better  price could   have  been  obtained  and  in  fact  the  price   is substantially  inadequate there is the presence of both  the elements  of irregularity and injury.  But it is not  as  if the court should go on adjourning the sale till a good price is  got  it  being a notorious fact that  court  sales.  and market  prices  are distant  neighbours.   Otherwise  decree holders can never get the property of the debtor sold.   Nor

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is  it  right  to  judge the  unfairness  of  the  price  by hindsight  wisdom.  May be subsequent events not within  the ken of the executing court when holding. the sale may  prove that  had the sale been adjourned a better price could  have been  had.   What is expected of the judge is not  to  be  a prophet  but  a pragmatist and merely to  make  a  realistic appraisal of the factors and if satisfied that in the  given circumstances the bid is acceptable conclude the sale.   The court  may  consider  the fair value of  the  property,  the general  economic  trends  the  large  sum  required  to  be produced  by the bidder, the formation of a  syndicate,  the futility of postponements and the possibility of litigation, and  several other factors, dependent on the facts  of  each case.   Once  that  is  done, the  matter  ends  there.   No speaking  order is called for and no meticulous post  mortem is  proper.   If  the court has  fairly,  even  if  silently applied  its mind to the relevant considerations before  him while  accepting  the final bid no probe  in  retrospect  is permissible.  Otherwise, a new threat to certainty of  court sales will be introduced. So  viewed,  we are satisfied that the  district  court  had exercised   a   conscientious  and  lively   discretion   in concluding the sale at Rs. 11 .5 lakhs.  If the market value was over 17 lakhs, it is unfortunate that a lesser price was fetched.   Mere  inadequacy of price cannot  demolish  every court  sale.   Here, the court tried its  best,  time  after time,  to raise the price, well-known industrialists in  the public  and  private sectors knew about it  and  turned  up. Offers   reached   a  stationary  level.   Nor   could   the Corporation  be put off indefinitely in recovering its  dues on   baseless  expectations  and  distant  prospects.    The judgment  debtor himself, by his litigious exercises,  would have  contributed  to the possible buyers  being  afraid  of hurdles  ahead.  After all, producing around Rs. 11.5  lakhs openly to buy an industry is not easy even for an  685 apparently  affluent businessmen.  The sale proceedings  had been  pending too long and the first respondent  could  not, even  when given the opportunity, produce buyers by  private negotiation.   ’Not even a valuer’s report was  produced  by him, we are satisfied that the District Judge had  committed no  material  irregularity  in the conduct of  the  sale  in accepting the highest offer of the appellant on September 3, 1969. Shri Parekh has levelled a number of criticisms of the court sale  which  we regret are more captious  than  substantial, more  fictitious than genuine.  Complaining about the  rains in Bombay that day-, i.e. September 3, dissecting the Corona Electricals’  valuation  for  minor  omissions  and  errors, holding  up the exaggerated figure of about Rs. 36 lakhs  as the  market  value  of  the property  and  other  like  cir- cumstances  can  hardly convince anyone that  the  hoped-for happy  day  would  arrive when a  handsome  price  would  be forthcoming if the auction were adjourned ad libitum at  the instance of the judgment debtor.  Prima ’facie it may look a little  odd  that  a financial  orgnisation  in  the  public sector,  with a special responsibility to the people not  to play  with public funds or advance for shady enterprises  or persons  should  have readily lent a huge amount of  Rs.  10 lakhs on a valuation obviously bloated as is established  by the  sequel,  and  struggled for long years  to  recoup  the money.  This aspect of the matter, we hope, will receive the anxious  attention  of  the concerned  authorities  so  that public  money may be handled by public servants with  public responsibility and concern for public benefit.  However,  we

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do  not  wish  to express any opinion  because  we  have  no material  before  us as to what were  the  circumstances  in which  Dena  Bank  advanced the loan, what  were  the  other securities given by the Company, and what was the then worth of the guarantors. Several  other  unsuccessful grounds were urged  before  the High  ,Court by the judgment debtor and we need not go  over those grounds again as they possess little merit.  Nor  need we   consider  the  ambit  of  appellate  power  to   review discretion exercised by the trial court (vide Ward v.  James (1)  since here we are concerned with no appeal against  the approval  of  the sale by the executing court  but  with  an order refusing to set aside the sale under Order XXI r.  90, and an appeal therefrom. We see no merit in the application to set aside the sale and are   constrained   to  allow  the  appeal.    Mr.   Somnath Chatterjee,  who  argued the appeal  with  thoroughness  and fairness,  in his opening submissions, told the court  that, regardless  of the outcome, he had persuaded his  client  to raise  the price to a sum equal to the amount at  which  the properties,  lots  I and 2, were estimated  by  M./s  Corona Electricals, namely, Rs. 17, 48,096/-. He stuck to it to the end  a good gesture.  Consequently, we shall accept that  as the  price  offered by the auction  purchaser-appellant  and direct  that  the appellant do deposit the balance  of  this amount of Rs. 17,48,096/- over what he has already paid into (1) [1966] 1 Q.B. 273 at 293. 686 court (Rs. 2,75,000/-) within two months from to-day, in the District Court, Thana, in which event the appellant will  be put  in  possession  of  the  properties  purchased  by  him forthwith.  Liberty is given to the Corporation to  withdraw to the extent of its dues with up-to-date interest. We  think  that the circumstances of the  case  warrant  the direction that parties will bear their costs throughout. V.P.S.                   Appeal allowed,. 687