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PETITIONER: SURINDER NATH KAPOOR

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT03/08/1988

BENCH: MISRA RANGNATH BENCH: MISRA RANGNATH DUTT, M.M. (J)

CITATION:  1988 AIR 1777            1988 SCR  Supl. (2) 211  1988 SCC  Supl.  626     JT 1988 (3)   285  1988 SCALE  (2)318

ACT:     Income Tax Act, 1961-Whether a garnishee order passed by Income-tax  Officer under section 226(3) (x)-Of-For  payment of  a fictitious sum without notice under section 226(3)  of and whether consequent sale of property pursuant to such  an order are null and void.

HEADNOTE:     This  Civil Micellaneous Petition was filed by  a  firm, Raja Properties  for directions consequent upon the disposal of  a special leave petition (civil) filed by  one  Surinder Nath Kapoor.     Surinder  Nath  Kapoor was one of the partners  of  M/s. Krishna   Kapoor  &  Co.  M/s.  Indo-Kashmir   Carpets   and Handicrafts  was a sister concern of M/s. Krishna  Kapoor  & Co.  The IAC (Asstt.) passed a garnishee order under section 226  (3) (x) of the Income Tax Act (’the Act’) holding  M/s. Krishna  Kapoor  &  Co. a defaulter to  the  extent  of  Rs. 8.56.377  found due by that firm to the assessee M/s.  Indo- Kashmir  Carpets  &  Handicrafts, and as  a  result  to  the garnishee  order, the property of M/s. Krishna Kapoor &  Co. was  put  up  for  sale by the  Tax  Recovery  Officer,  and purchased by the  petitioner, Raja Properties, and the  sale was confirmed.     Surinder  Nath Kapoor made an application under rule  61 of  the Second Schedule to the Act before the  Tax  Recovery Office,   for  setting  aside  the  sale   obovesaid.    The application  was dismissed.  Surinder Nath Kapoor  filed  an appeal  before the Tax Recovery Commissioner, he also  filed an  application  for  stay of confirmation of  the  sale  in question  till the disposal of that appeal.  As no stay  was granted,  he filed a writ petition in the High Court,  which dismissed the same.  Being aggrieved by the dismissal of the writ petition, he filed a petition for special leave in this Court.  This  Court,  upon being  informed  by  petitioner’s counsel  that  the amount of tax involved had  already  been paid  to the Department, passed an order dated  October  12, 1987, setting aside the sale aforesaid, the confirmation  of which  had been stayed by this court, and disposing  of  the special leave petition accordingly.     The  Tax Recovery Officer did not dispose of the  appeal

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afore  mentioned  of Surinder ,Nath Kapoor, in view  of  the                                                    PG NO 212 order  of this Court setting aside the sale.  Surinder  Nath filed an application for clarification of this Court’s  said order.   During   the  pendency  of  the   application   for clarification. the petitioner Raja Properties, the  auction- purchaser,  filed the present petition for  directions;  for recalling  the order above-said passed in the special  Leave petition  and for dismissing the Special Leave Petition.  As regards the clarification of its order, the Court reiterated that by virtue of that order the sale stood set aside.     It  was contended by  the  petitioner/auction-purchaser, Raja   Properties,  that  the  auction  sale   having   been confirmed, the same could not be set aside.     Disposing the petition of Raja Properties, the Court.     HELD: Sec. 226 (3) (x) of the Act provides for the issue of  a notice on a garnishee.  Under clause (x), if a  person to whom a notice is sent fails to make payment in  pursuance thereof to the Income-tax Officer, he shall be deemed to  be an assessee in default in respect of the amount specified in the  notice in this case was Rs. 2,86,450.  The  firm,  M/s. Krishna Kapoor & Co., did not deny on oath that the said sum demanded   was  due  by  them  to  Indo-Kashmir  Carpets   & Handicrafts.   In view of clause (x), M/s. Krishna Kapoor  & Co. would be deemed to be an assessee in default in  respect of  the said sum of Rs. 2,86,450 as specified in the  notice and not for any other amount.  The Income-tax Officer put up the property to sale for Rs. 8,56,377.55, which was not  the amount  specified  in the garnishee notice.   The  garnishee order  was for a fictitious sum of Rs. 8,56,377.55, as  this amount was not mentioned in the notice under section 226 (3) of  the  Act.   When  an order is  made  for  payment  of  a fictitious  sum without giving an opportunity to the  person against  whom the order is made, to show cause  against  the passing  of such an order, the order is a nullity.  It  will be  deemed that there was no existence of such an order  and any  step  taken  pursuant  to that order  will  also  be  a nullity.   The garnishee order passed by the IAC (Asst.)  in this  case  for Rs. 8,56,377.55 was null and void,  and  the sale  had  been  confirmed.  In the language  of  the  Privy Council in Baijnath Sahai v. Ramgut Singh, Vol. 23 I.A.  45, there was no judgment, there was nothing corresponding to  a judgment,  there was nothing corresponding to a judgment  or decree  for  payment  of  the  amount,  and  there  was   no foundation for sale. [219A, G-H;220A-D;221A-B]     For all this, the Revenue was responsible and liable  to compensate   the  auction-purchaser,  a  stranger   to   the                                                    PG NO 213 litigation.  Counsel  for  the Revenue pointed  out  that  a representation  on behalf of Surinder Nath Kapoor  had  been made before the Court when it passed its order dated October 12,  1987,  aforementioned that the income tax dues  of  the firm, Krishna Kapoor & Co., to the extent of Rs.3,38.146 had already been paid to the department when, on the date of the said  order, the amount had not been paid, but was  paid  on the  next day and the said order setting aside the sale  had been  obtained  by  making a false  representation  to  this Court.  Even though there was some misrepresentation on  the part  of  the firm, the Court could not  recall  the  order, setting aside the sale which was null and void. But in  view of the conduct of the firm or its partner, they should share along  with  the Revenue a part of the  compensation  to  be allowed  to  the  auction-purchaser.  The  auction-purchaser would  he  entitled to withdraw unconditionally the  sum  of RS.37,81,000  deposited by it and would be entitled  to  get

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interest at specified rate on the said amount for the period the amount remained blocked, by way of compensation, out  of which  a  sum  quantified would be paid  by  the  firm  M/s. Krishna  Kapoor  &  Co. and/or  its  partner  Surinder  Nath Kapoor, and the rest, by the Revenue. [221B-G]     Baijnath Sahai v. Ramgut Singh Vol. 23 I.A. 45, referred to.

JUDGMENT:     CIVlL  APPELLATE  JURlSDICTION:   Civil   Miscellaneous Petition No. 2340 of 1988.     Special Leave Petition (Civil) No. 9946 of 1987.     From  the  Judgment and Order  dated  29.9.1986  of  the Rajasthan High Court W.P.No. 853 of 1986.     Dr. Gauri Shankar and P.N. Misra for the Appellant.     Kuldip   Singh,  Additional  Solicitior  General,   S.C. Manchanda,  Shanti Bhushan, Ms. A. Subhashini and S.K.  Jain for the Respondents.     The following Order of the Court was delivered:                          O R D E R     This  Civil Miscellaneous Petition has been filed  by  a firm,  Raja  Properties,  praying  for  certain  directions, consequent  upon the disposal of the Special Leave  Petition (Civil)  No. 9946 of 1987 filed by one Surinder Nath  Kapoor against the Union of India and others.                                                    PG NO 214     Before considering the Civil Miscellaneous Petition,  it is  necessary to state a few facts leading to the filing  of the petition.     Surinder  Nath  Kapoor is one of the  partners  of  M/s. Krishna  Kapoor  &  Co. consisting  of  the  following  four partners:     (1) Shri Shiv Dayal Kapoor (since deceased).     (2) Shri Surinder Nath Kapoor.     (3) Shri Ram Nath Kapoor.     (4) Shri Narender Nath Kapoor.     Partners  Nos.  2, 3 and 4 are the sons  of  Shiv  Dayal Kapoor,  since  deceased. There is another firm  M/s.  Indo- Kashmir  Carpets & Handicrafts. It is the sister concern  of M/s. Krishna Kapoor & Co. and constituted with the said Shiv Dayal Kapoor, since deceased, and his daughters-in-law. Both the  firms  are assessees under the Income  Tax  Act,  1961, hereinafter referred to as ’the Act’.     On  December  12,  1954,  the  IAC  (Astt.),   Range-lI, Amritsar, passed a garnishee order under section  ,226(3)(x) of the Act holding M/s. Krishna Kapoor & Co. a defaulter  to the extent of Rs . 8,56, 377 on the allegation that the said sum  was  due by M/s. Krishna Kapoor & Co. to  the  assessee M/s. Indo-Kashmir Carpets & Handicrafts. The garnishee order was  thereafter put into execution and the property of  M/s. Krishna Kapoor & Co. was put up for sale by the Tax Recovery Officer-I, Jaipur, on January 21, 1986 and was purchased  by the  petitioner, Raja Properties, for the sum of  Rs.  37,13 1,000. The sale was  confirmed on March 14, 1986.     The said Surinder Nath Kapoor made an application  dated February  15, 1986 under rule 61 of the Second  Schedule  to the Act before the Tax Recovery Officer, Jaipur, praying for setting  aside of the sale of the property of  M/s.  Krishna Kapoor &r Co. The said application was dismissed by the  Tax Recovery Officer, Jaipur, by his order dated March 14, 1986. He  filed an appeal in Form No. 29-A under rule 86(1)(c)  of the  Second  Schedule  to the Act before  the  Tax  Recovery Commissioner,  Jaipur. He also filed an application  praying

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for stay of the confirmation of the sale by the Tax Recovery Officer,  Jaipur, till the disposal of the appeal. The  said appeal  was,  however,  transferred  by  the  Tax   Recovery                                                    PG NO 215 Commissioner,  Jaipur,  to the Tax   Recovery  Commissioner, Amritsar.  The  said  Surinder Nath  Kapoor  also  filed  an application  for stay before the Tax Recovery  Commissioner, Amritsar.  As no stay was granted, he filed a writ  petition in the Rajasthan High Court. The writ petition was, however, dismissed  by the High Court by its order  dated   September 29,   1986.  Being aggrieved by the dismissal  of  his  writ petition,  the  said Surinder Nath Kapoor  filed  the  above Special1 Leave Petition No. 9946 of 1986.     The Special Leave Petition was disposed of by this Court b1y its order dated October 12, 1987 as follows:     "Heard  learned counsel for the parties.  Mr.  Manchanda for  the   Department agrees that the tax liability  of  the petitioner has been reduced to Rs.3,38,l46. Mr. P.N.  Misra, counsel for the petitioner states in Court that this  amount has already been paid to the Department. In that view of the matter,  the petitioner no more owes any tax to  the  Income Tax Department. The sale already held confirmation of  which we  had  granted  stay shall stand  vacated.  Special  Leave petition is disposed of with aforesaid directions. "     It is clear from the above order of this Court that  the sale  was set aside. As the Tax Recovery Officer,  Amritsar, before  whom  the  said Surinder Nath Kapoor  had  filed  an appeal,  did not dispose of the appeal, in view of the  said order  of this Court setting aside the sale,  Surinder  Nath Kapoor  filed an application for clarification of  the  said order  of  this  Court dated October  12,1987.  During  the pendency  of  the said application  for  clarification,  the petitioner,  Raja Properties, the  auction-purchaser,  filed the  said petition for direction praying for  recalling  the order dated October 12, 1987 of this Court and the dismissal of the Special Leave Petition.     It may be stated at this stage that this Court took  the view  that its order dated October 12, 1987 was quite  clear and did not require any clarification whatsoever. The  Court reiterated that by virtue of that order, the sale stood  set aside.  Upon  receipt  by the Commissioner  of  Income  Tax, Jaipur,  of  a  contempt notice issued by  this  Court,  the appeals  which had been filed by Surinder Nath Kapoor,  were all  disposed of by him on February 4, 1988 in the light  of the order of this Court setting aside the sale.     It was contended by the petitioner auction-purchaser  in support  of its application for direction that the  auction-                                                    PG NO 216 sale   having  been confirmed on March 14,  1986,  the  same could  not be set aside. During the hearing of the  petition of  the  auction-purchaser,  there was a dispute  a  to  the amount for which the auction sale was held. It was urged  on behalf  of the firm, M/s. Krishna Kapoor & Co. that  it  did not owe an amount to Indo-Kashmir Carpets & Handicrafts and, therefore,  the  garnishee order in execution of  which  its property  was sold was illegal.  Further, it was urged  that M/s.  Krishna Kapoor & Co. was only liable to the extent  of Rs.3,38, 146 to the Income Tax Department on account of  its own Income Tax dues which amount it had already deposited.     The  Revenue  could not produce before  this  Court  any document  showing the exact amount in respect of which  M/s. Krishna Kapoor & Co. was really indebted to the Indo-Kashmir Carpets  & Handicrafts. It was only contended on  behalf  of the  Revenue that the firm, M/s. Krishna Kapoor &  Co.,  was liable  to the tune of Rs. 10,00,000 and odd arising out  of

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the  garnishee order, which was emphatically denied  by  the said firm. In that state of records, an April 26, 1988, this Court made the following order:     "The  matter  is  adjourned to 9  th  May-1988.  In  the meantime,    as  represented  by  the   learned   Additional Solicitor  General, the Central Board of Direct  Taxes  will hold an enquiry to find out whether on the date of sale  the assessee  was  liable to the tune of Rs. 10  lakhs  and  odd arising out of the garnishee order and therefore in the auction  sale held this amount was available to be  included as debt to the Department. The report of the Enquiry Officer shall be made: available to us on that day. Parties are free to place further materials before us."     Pursuant to the above order, the Central Board of Direct Taxes  appointed  Shri  K.K. Veer, Director  of  Income  Tax Recovery ), New Delhi, the Enquiry Officer. After holding an enquiry  into  the  matter, the Enquiry  Officer  has  since submitted  his report. The report reveals a  startling  fact which  wi]l  be stated presently. The lAC  CAsst.)  Range-Il Amritsar, issued a show cause notice dated October 13,  1984 under section 226(3) of the Act to M/s. Krishna Kapoor & Co. In  the  show  cause notice, a demand of  Rs  .2,  86,  450, alleged lo be due: from the firm Krishna Kapoor & Co. to the finn Indo-Kashmir Carpets & Handicrafts, was made. No  reply was  received  by the Income Tax Officer from  M/s.  Krishna Kapoor & Co. in respect of the show cause notice.  Curiously without   passing   a  garnishee  order  for  the   sum   of                                                    PG NO 217 Rs.2,86,450,  a garnishee order for the sum  of  Rs.8,56,377 was  passed  by the IAC (Asst.), Range-II,  Amritsar,  under section  226(3)(x)  of the Act. This fact,. which  has  been clearly stated in the report of the Enquiry Officer, has not been  Denied before us by the Revenue. The basis of  passing the garnishee order dated December 10, 19134 was, as pointed out  by  the  Enquiry Officer in his report,  a  copy  of  a statement  of accounts filed by M/s. Indo-Kashmir Carpets  & Handicrafts and a letter dated September 27, 1884 written by two  of its partners to the Assessing Officer,  inter  alia, stating  that M/S. Krishna Kapoor & Co. was indebted to  M/s Indo-Kashmir Carpets & Handicrafts to the tune of Rs.8 lacs. In this connection, it is significant to notice that the IAC (Asst.),  Range-II, Amritsar, then holding the post  of  Dy. Commissioner of Income-tax (Central), Range-II, Ludhiana, in his  letter addressed to the Enquiry Officer  stated,  inter alia,  that on the basis of  the balance-sheet available  on the  assessment records filed after the garnishee order  was passed, no amount was payable to M/s. Indo-Kashmir Carpets & Handicrafts by M/s. Krishna Kapoor & Co. as on 31.3.1982.  A copy  of  the letter is Annexure-VII to the  report  of  the Enquiry Officer. The Enquiry Officer observed in his  report as  follows:     "There  is nothing on record to show that the  Assessing Officer  made any attempt to call for the balance-sheet  and accounts  of the firm. There is also nothing on record  show that the assessing officer tried to record the statements of any  or  of all the partners specially when  the  filing  of balance-sheets  and statement of accounts was being  delayed intentionally  or  otherwise on the ground that  there  were disputes  among  the  partners. The  assessing  officer  was assessing  both the firms and all the partners of the  firm, yet no attempt was made by him to include the arrears of the partners  also  in  the show cause notice  issued  under  s. 226(3) on 15. 10.84. . . . . . . . . . . . . . . . . . . . . In  view of the facts mentioned above. I express my  regrets that I am unable to give a finding in respect of the  amount

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of  Rs.8,56,377.55  mentioned in the garnishee  order  since without  co-operation  of assessee and books of  account  of both  the  firms  and partners, I  am  unable  to  establish whether  M/s. Krishna Kapoor & Co. owed this amount to  M/s. Indo-Kashmir  Carpets..& Handicrafts. I still hold that  the Assessing  Officer at the time of issue of  garnishee  order                                                    PG NO 218 should have verified the amount being mentioned by him  both in  the show cause notice as well as in the garnishee  order passed by him u/s 226(3)(x) of the I.T. Act,  1961, which he failed to do, with all the powers of production of books  as well  as summoning the partners of the firm u/s 131  of  the I.T. Act, 1961 being at his command. "     It  is  manifestly clear from the  observations  of  the Enquiry Officer extracted above that he could not come to  a finding  that a sum of Rs. 8,56,377.55 in respect  of  which the  garnishee  order was, passed was actually due  by  M/s. Krishna  Kapoor  &  Co.  to  M/s.  Indo-Kashmir  Carpets   & Handicrafts.  It  is  true  that  the  Enquiry  Officer  has observed  that  both  the firms did not  co-operate  in  the matter,  but it is equally true that the Revenue had  failed to substantiate that the said sum was due by Krishna  Kapoor & Co. to the other firm. The most glaring fact that has been found  by  the  Enquiry Officer is  that  although  the  IAC (Astt.),  Range-II, Amritsar, issued a show cause notice  to Krishna  Kapoor  & Co. under section 226(3)  in  respect  of Rs.3,86,450,   yet   he  issued  a   garnishee   order   for Rs.l3,5d,377.55. It has been observed by the Enquiry Officer that it was due to the carelessness of the officer concerned that  he did not issue the show cause notice for the sum  of Rs.8,56,377.55  for which a garnishee order was issued.  but such   carelessness,  in  our  opinion,   is   unpardonable. Moreover,  as  stated  already,  there  is  no  satisfactory evidence before the IAC (Asstt.), Range-Il, Amritsar, that a sum of Rs.8,56,377.55 was due by the firm, Krishna Kapoor  & Co., to M/s. Indo-Kashmir Carpets & Handicrafts, inasmuch as the  Enquiry  Officer himself has been unable to come  to  a finding in respect of that amount. Thus, without giving  the firm, Krishna Kapoor & Co., an opportunity of showing  cause in respect of the sum of Rs.8,56,377.55 under section 226(3) of the: Act, a garnishee order in respect of that amount was passed under section 226(3)(x) and a very valuable  property of  the  firm  was  put  up  to  auction  and  sold  to  the petitioner.     The  contention of the petitioner  auction-purchaser  as well as of the Revenue is that the petitioner being a  third party  auction-purchaser.  the sale could not be  set  aside after it was confirmed on March 14, 1986. On the other hand, it has been strenuously urged on behalf of the firm, Krishna Kapoor  & Co., that as no show cause notice was issued  to it under section 226(3) of the Act in respect of the sum  of Rs.8,56,377.55,,  the garnishee order passed  under  section 226(3)(x)  for the amount and the sale held in execution  of such an order are null and void.                                                    PG NO 219     Section 226(3)(x) provides for the issue of a notice  on a garnishee. Section 226(3)(vi) provides as follows:     "S.  226(3) (vi). Where a person to whom a notice  under this  sub-section  is sent objects to it by a  statement  on oath that the sum demanded or any part thereof is not due to the  assessee or that he does not hold any money for  or  on account of the assessee, then nothing contained in this sub- section  shall be deemed to require such person to  pay  any such  sum or part thereof, as the case may be, but if it  is discovered  that  such statement was false in  any  material

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particular,  such person shall be personally liable  to  the Income-tax Officer to the extent of his own liability to the assessee on the date of the notice, or to the extent of  the assessee’s  liability  for  any sum  due  under  this   Act. whichever is less."     The  object of serving a notice under clause (3)(vi)  of section 226 is to give the garnishee an opportunity to admit or  deny  his  liability for the  amount  mentioned  in  the notice. Under clause (i) of section 226(3), if the garnishee objects  to the notice by a statement on oath that  the  sum demanded or any part thereof is not due to to the  assessee, then the garnishee will not be required to pay any such  sum or part thereof, as the case may be. Thereafter. clause  (x) of section 226 (3) provides as follows :     "S. 226(3)(x). If the person to whom a notice under this sub-section  is  sent  fails to make  payment  in  pursuance thereof to the Income-tax Officer, he shall be deemed to  be an assessee in default in respect of the amount specified in the notice and further proceedings may be taken against  him for the realisation of the amount as if it were an arrear of tax due from. In the manner provided in sections 223 to  225 and  the notice shall have the same effect as an  attachment of  a  debt by the Tax Recovery Officer in exercise  of  his powers under section 222."     Under clause (x), if the person to whom a notice is sent fails  to, make payment in pursuance thereof to the  Income- tax Officer, he shall be deemed to be an assessee in default in respect of the amount specified in the notice. The amount that was specified in the notice was Rs.2,86,450. The  firm, M/s. Krishna Kapoor & Co., did not deny on any part  thereof was due by them  to Indo-Kashmir Carpets & Handicrafts.  So,                                                    PG NO 220 in  view oof clause (x), M/s.Krishna Kapoor & Co.  shall  be deemed  to be an assessee in default in respect of the  said sum  of Rs.2,86,450 as specified in the notice and  not  for any  other amount. The Income Tax Officer, however,  put  up the  property to sale for Rs.8,56,377.55, which was  not  at all  specified in the garnishee notice. In other  Words  the garnishee order was for a fictitious sum of Rs.  8,56,377.55 inasmuch as it was not mentioned in the notice under section 226(3) of the Act.     There can be no doubt that when an order is made for the Payment  of a fictitious sum without giving any  opportunity to  a person, against whom the order is made, to show  cause against  the passing of such an order for the said sum,  the order  is  a nullity. In other words, in the eye of  law  it will be deemed that there was no existence of such an  order and any step taken pursuant to or in enforcement of such  an order  will  also  be a nullity. It will  be  tantamount  to selling a property in execution of a decree when the  decree has no factual existence. In such a case also, the sale will be null and void. The garnishee order that was passed by the IAC  (Asst.),  Range-ll.,  Amritsar,  for  the  sum  of  Rs. 8,56,377. 55 is, therefore, null and void.     In  this connection, we may refer to a decision  of  the Privy  Council  in Baijnath Sahai v. Ramgut Singh,  Vol.  23 I.A. 45. In that case, a property was sold in execution of a certificate issued under the Bengal Public Demands  Recovery Act.  1880,  when,  as  a matter  of  fact,  there  was  no, existence of any certificate.  The Privy Council observed as follows:     "If no such certificate is given then the whole basis of the  proceeding  is  gone. There is no  judgment,  there  is nothing corresponding to a judgment or decree for payment of the  amount,  and there is no foundation for the  sale.  The

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authority to proceed to the sale is based on the certificate which has the effect, as has been already pointed out, of  a judgment  or decree, and if no judgment or decree is  given, and no certificate is filed having the force or effect of  a judgment or decree, there can be no valid sale at all."     In the instant case, the garnishee order that was passed was a nullity and any sale held pursuant to such an order is also  a  nullity. If is quite immaterial that the  sale  was confirmed. When a decree or order is illegal, any sale  held in execution of such a decree or order and  confirmed cannot be set aside on the ground that it was illegal when the sale                                                    PG NO 221 is  in favour of a third party. But, when a decree or  order is a nullity, it will be deemed to have no existence at  all and  any  sale held in execution of such a decree  or  order must  also be held to be null and void. In the  language  of the  Privy Council in the above case, there is no  judgment, there  is nothing corresponding to a judgment or decree  for payment  of the amount, and there is no foundation  for  the sale.     For  all this, the Revenue is responsible and is  liable to compensate the auction-purchaser who is a stranger to the litigation.  Our  attention has been drawn  by  the  learned Additional Solicitor General to the order dated October  12, 1987, which has already been extracted above, showing that a representation  on behalf of the said Surinder Nath  Kapoor, had been made to this Court that the Income Tax dues of  the firm,  Krishna Kapoor & Co., to the extent of  Rs.3,38,  146 had  already been paid to the Department, when,  admittedly, on  the date the said order was passed it was not paid,  but on the next day. It is pointed out by the learned Additional Solicitor  General that by making a false representation  to this  Court  the  firm and/or  its  partner,  Surinder  Nath Kapoor,  got  an  order  setting  aside  the  sale.  In  the circumstances, it is submitted that the order setting  aside the sale should be recalled.     We  are unable to accept the contention. It has  already been  held by us that the sale is a nullity and even  though there  was some misrepresentation on the part of the  firm, it is difficult for us to recall the order setting aside the sale  which is null and void. We are, however, of  the  view that  in  view of the conduct of the firm  and/or  its  said partner, they should share along with the Revenue a part  of the  compensation  that  may  be  allowed  to  the  auction- purchaser.     It  has already been noticed that a sum of  Rs.37,81,000 was   deposited  by  the  auction-purchaser.  The   auction- purchaser  will  be  entitled to withdraw  the  said  amount unconditionally. The Revenue shall see that the said  amount is  refunded  back to the  auction-purchaser.  Further,  the auction  purchaser will be entitled to get interest  on  the said amount at the rate of fifteen per cent per annum for  a period  of  two years and a half, during  which  the  amount remained  blocked,  by way of compensation.  The  amount  of interest  calculated  at the said rate for the  said  period comes  to Rs.l4,l7,875. Out of the said amount, the  Revenue shall pay to the auction-purchaser a sum of Rs. 11, 17,  875 and  the remaining sum of Rs.3,00,000 shall be paid  to  the purchaser  by the firm M/s. Krishna Kapoor & Co. and/or  the Surinder Nath Kapoor, who was the petitioner in the Special                                                    PG NO 222 Leave  Petition. The said finn and/or Surinder  Nath  Kapoor shall  pay  the  said amount of Rs.3 lacs  to  the  auction- purchaser  within  three months from date,  in  default  the auction-purchaser will be entitled to execute this order and

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realise  the same by the sale of the self-same  property  or such   portion  thereof  as  will  be  sufficient  for   the realisation of the said amount. The Revenue is also directed to  pay  the  said  sum of Rs.  11,17,875  to  the  auction- purchaser within a period of two months from date.     The C.M.P. is disposed of as above. There will, however, be no order as to costs. S.L.