1. Heard.

Rule. Rule made returnable forthwith. Heard finally with the consent of the learned counsel for the parties.

The present petition challenges order dated 17/07/2026 passed below application Exhibit-186 in Final Decree proceedings No.12/2012 passed by the 19th Joint Civil Judge, Senior Division, Nagpur. By way of said order, the Executing court has allowed the application filed by the auction purchaser (respondent No.21) in terms of prayer clause (i) thereby condoning the delay in deposit of stamp duty. It has further granted leave and liberty to the auction purchaser to file separate application seeking reliefs in prayer clauses (ii) to (iv).

2. Facts as can be seen from the petition are as under :

On 25/08/2011, Special Civil Suit no.842/2006 filed by the present respondent No.1-Ramesh Jeevanlal Gupta seeking partition of the property being Nazul Plot No.144, Ramdaspeth, Nagpur was decreed. It was held that the said plaintiff i.e. respondent No.1 herein was entitled to 1/18th share in the suit property. It is an admitted fact on record that the preliminary decree so passed was not assailed by anybody and has therefore attained finality.

3. The original plaintiff/decree holder filed final decree proceedings (FDP) bearing Case No.12/2012 and the Court Commissioner was appointed for effecting partition by metes and bounds in terms of the decree and for handing over separate possession of his share to the decree holder. The Court Commissioner however reported to the Executing Court that the property was impartible. This prompted the Executing Court vide its order dated 19/10/2023 to order sale of the property by public auction so that the auction money obtained from the said sale be distributed in terms of the decree.

4. Thereafter on 30/01/2026, since first attempt to auction the property failed, the Executing Court once again directed sale of the property. In the auction which ensued, the bid of respondent No.21 of Rs.30 Crore was declared successful and the said respondent deposited Rs.9 Crore on that day. It is also an admitted position on record that on 12/02/2026, the respondent No.21 deposited the balance amount thus making the total deposit of Rs.30 Crore.

5. On 16/02/2026, one of the judgment debtor filed an application vide Exhibit-163 objecting the said sale on various grounds. On 23/03/2026, the petitioner filed an application vide Exhibit-169 thereby challenging the very jurisdiction of the Executing Court on various grounds and more particularly on the anvil of Section 54 of the Code of Civil Procedure, 1908 (for short, the Code). On 19/06/2026, the said application at Exhibit-169 was rejected by the Executing Court.

6. In the backdrop of these facts, on 23/06/2026, the respondent No.21 i.e. the auction purchaser filed an application below Exhibit-186 praying for the following reliefs :

                   i) Condone the delay in deposit of the stamp duty by the auction purchaser and grant permission to the auction purchaser to deposit the stamp duty of Rs.2.1 crores in the interest of justice.

                   ii) Confirm the sale of subject property in favour of the auction purchaser Shah Doshi Services LLP and be further pleased to declare that the sale in favour of the auction purchaser has become absolute.

                   iii) Grant Sale Certificate of subject property in favour of the auction purchaser Shah Doshi Services LLP as provided by Order 21 Rule 94 of the Code of Civil Procedure, 1908;

                   iv) After granting the sale certificate, a copy of the same along with the stamp duty of Rs.2.1 crores deposited with this Hon'ble Court be forwarded to the Sub Registrar, Nagpur under Section 89 of the Registration Act, 1908

                   v) Any other relief which this Hon'ble Court deems fit and proper in the facts and circumstances of the case.”

7. This application was vehemently opposed by the present petitioner on a premise that proviso to Order XXI Rule 85 of the Code (State amendment) does not confer power on the Executing Court to condone the delay caused in depositing the stamp duty. It was also contended that the power to condone delay can be exercised only in case of bonafide mistake or miscalculation and not otherwise. The Executing Court after hearing the auction purchaser allowed the application partly in terms of prayer clause (i) only. As can be seen from the order impugned, the petitioner herein did not turn up to argue the said application. It is this order dated 17/07/2026 passed below Exhibit-186 which is impugned in the present writ petition.

8. On 14/08/2026, this Court issued notice to the respondent Nos.1 and 21 only having prima facie found that only they are the contesting parties. Respondent No.1 in the present matter is the original decree holder while respondent No.21 is the auction purchaser. Considering the nature of order proposed to be passed, notice to other respondents is dispensed with.

9. Thus, the matter was heard at length.

Shri S. Bhutada, learned counsel for the petitioner takes me through the impugned order and also the provisions of Order XXI Rule 85 of the Code and more particularly the State amendment. The relevant provisions are reproduced as under :

                   “High Court Amendments-

                   [Bombay].-For the existing rule 85, substitute the following rule and marginal note:-"85. Time for payment in full of purchase money. The full amount of purchase money payable, together with the amount required for the general stamp paper for the certificate rule shall be paid by the purchaser into Court before Court closes on the 15th day from the date of the sale of the property:

                   Provided that, in respect of the purchase-money, the purchaser shall have the advantage of any set-off to which he may be entitled under rule 72:

                   Provided further that, if as a result of some bona fide mistake or miscalculation the amount deposited falls short of the full amount of the purchase-money, the Court may in its discretion, allow the shortfall to be made up after fifteen days of the sale, and if the full amount of the purchase-money is deposited within such time as the Court may allow, the Court may condone the delay, if it considers it just and proper to do so.

                   Explanation:- When an amount is tendered in Court on any day after 1.00 P.M. but is not accepted by the Court and is paid into Court on the next working day between 11.00 A.M. and 1.00 P.M., the payment shall be deemed to have been made on the day on which the tender is made".-(1-10-1983).”

10. It is therefore the contention of the learned counsel for the petitioner that there is no power vested in the Court to condone the delay when it comes to payment of stamp duty. He further submits that the order therefore is without jurisdiction and does not take into consideration the absence of power in the Executing Court. He also points me out Section 128 of the Code which is a rule making power and submits that the rules framed should not be inconsistent with the provisions of the Code but subject thereto and may provide for any matters relating to the procedure of Civil Courts. He further submits that the Orders and Rules appended to Code of Civil Procedure are part of the Civil Procedure Code. By laying reliance on provisions of Order XXI Rules 82 to 92, it is the submission of the learned counsel for the petitioner that the scheme of said rules is clear enough and any deficiency in payment of purchase-money and stamp duty would entail consequences as provided in the said rules. He also points me out the provisions of Order XXI Rule 85 (Central provision) which state that the full amount of purchase-money shall be paid by the purchaser into Court before the Court closes on the fifteenth day from the sale of the property. Taking this into consideration, he submits that State amendment puts an additional embargo on the auction purchaser to pay the amount required for the general stamp paper for obtaining certificate under Rule 94. In his submission the intention of legislature is clear and in consequence of omission to deposit the amount which includes the purchase money and stamp duty if not paid or deposited, within a particular time frame, consequences as provided under Rule 86 have to follow. In his submission, the said provisions are mandatory in nature and therefore no deviation from the same is called for.

11. Shri Bhutada however in his usual fairness points out judgment of this Court in Arni Vividh Karyakari Sahakari Sanstha Limited vs. Maharashtra State Co-operative Marketing Federation Limited & another (2001) 4 Bom CR 542, wherein this Court clearly held that a meaningful reading of all these provisions would reveal that they clearly show that the purchase money payable is together with the amount for stamp paper and, therefore, is one unit and cannot be segregated from each other. This Court further held that the second proviso to Rule 85 in the scheme of this Rule also needs to be construed in a manner that the discretion provided in second proviso to make good the shortfall, cannot be restricted only to the purchase-money simplicitor since the term purchase-money includes the amount required for general stamp paper and it is total amount i.e. purchase-money simplicitor and the amount required for general stamp paper shall constitute the term purchase-money under the scheme of the proviso.

12. He however, submits that the said judgment does not consider the entire scheme of Rules 84 to 92 and more particularly the fact that the corresponding amendment to Rule 87 is also in the statute book wherein for the words “of the purchase money” the words “of the amounts mentioned in rule 85” are substituted. He therefore submits that the State legislature in its own wisdom having devolved the scheme by State amendment, it would not lie within the domain of Executing Court to condone delay caused in depositing the stamp duty.

13. Shri Bhutada, learned counsel also placed reliance on judgment of Honourable Apex Court in Manilal Mohanlal Shah and ors vs. Sardar Sayed Ahmed Sayed Mahmad and anr. (1954) 1 SCC 724 and more particularly paragraphs 8 and 9 thereof to buttress his submission that provisions regarding deposit of 25% by the purchaser other than the decree holder is mandatory which is suggestive from its language. He also placed reliance on the observations of the Apex Court that if the payment is not within a period of fifteen days, the Court has the discretion to forfeit the deposit and the discretion ends there; but the obligation of the Court to re-sell the property is imperative. A further consequence of non-payment is that the defaulting purchaser forfeits all claim over the property.

14. Per contra, Shri R. D. Bhuibhar, learned counsel for respondent No.1-original decree holder opposes the contention. He contends that the petition is filed under Articles 226 and 227 of the Constitution of India which is a relief in equity and therefore the conduct of the petitioner needs to be looked into. He further submits that the suit in question was filed in the year 2006 and the petitioner herein was proceeded ex-parte. He also submits that it is matter of record that the decree passed in the suit is not challenged by the petitioner. He also points me out that the petitioner has not chosen to raise any objection in the year 2015 also. He therefore submits that the petitioner is trying to protract/delay the execution of decree by filing objection one after another and therefore this Court would be reluctant to grant any relief to him in equitable jurisdiction.

15. Shri Rahul M. Bhangde, learned counsel for respondent No.21-auction purchaser also opposed the contention of the petitioner. He submits that the trial Court was perfectly justified in condoning the delay caused. By taking me through the impugned order, the learned counsel submits that the trial Court has recorded a finding based on material available that the respondent No.21 has purchased the property and has deposited the entire amount. He also submits that application below Exhibits-163, 169 and 183 have already been rejected by the Court vide order dated 19/06/2026. The said applications were filed by judgment-debtor No.8 i.e. the present petitioner for dismissal of the instant Final Decree proceedings, since the same (according to him) were without jurisdiction. It is therefore contended that the present petitioner is leaving no stone unturned to see it that the decree of partition even though unchallenged, could not be fructified. The learned counsel further submits that the auction purchaser has deposited his hard earned money and therefore cannot be non-suited on the ground, much less as agitated by the petitioner.

16. In the alternative he submits that there was no need for a successful auction purchaser to deposit stamp duty for the sale certificate issued to him in view of the provisions of Indian Stamp Act, 1899 and the Registration Act, 1908. For this proposition he relied on the judgment of Apex Court in State of Punjab and anr. vs. Ferrous Alloy Forgings P. Ltd. And ors. 2024 SCC OnLine SC 3372. He points me out paragraphs 13 and 14 of the said judgment. Further more, placing reliance on paragraph 17 of the said judgment, the learned counsel for the auction purchaser submits that as held by the Hon’ble Apex Court, a sale certificate issued to the purchaser in pursuance of the confirmation of an auction sale is merely evidence of such title and does not require registration under Section 17(1) of the Registration Act. It is a dictum of the Hon’ble Supreme Court in the said judgment that it is not the issuance of the sale certificate which transfers the title in favour of the auction purchaser. The title is transferred upon successful completion of the sale and its confirmation by the Competent Authority after all the objections against the sale have been disposed of.

17. Learned counsel further submits that such an objection is already rejected by the Executing Court on 19/06/2026. By taking me through paragraph 20 of the said judgment, it is the submission of the learned counsel for the auction purchaser that the certificate issued by the authorised officer is not compulsorily registrable. Only filing under Section 89(4) of the Registration Act itself is sufficient when a copy of the sale certificate is forwarded by the authorised officer to the registering authority. As long as sale certificate issued as it is, it is not compulsorily be registrable. It is only when the auction purchaser uses such sale certificate for some other purpose that the requirement of payment of stamp duty would arise. It is therefore his submission that assuming the order impugned is incorrect or without jurisdiction, the stamp duty at threshold is not required to be paid and as such no fault can be seen with the impugned order. He therefore supports the impugned order.

18. He also points me out provision of Order XXI Rule 92 (State amendment) which provides that before confirming the sale, the Court shall satisfy itself that the amount paid under Rule 85 for the purchase of general stamp paper for the certificate under Rule 94 is sufficient for the purpose in accordance with the rate in force at the time of confirmation and may, notwithstanding anything contained in Rule 86 give the purchaser such time as it thinks fit for making good any deficiency.

19. Rival contentions fall for my consideration. I have gone through the record of the matter. The fact regarding passing of a judgment thereby the respondent No.1 getting 1/18th share in the property is not disputed. It is also not disputed that the said judgment and decree was never challenged and thus has attained finality. The learned counsel for the petitioner also does not dispute that he was proceeded ex-parte in a suit and also has not chosen to challenge the said judgment. It is also an admitted fact on record that the auction purchaser has deposited the entire amount of Rs.30 Crore. The only question therefore which falls for consideration in the petition is does the second proviso to Order XXI Rule 85 (State amendment) circumscribes the power of condoning delay only with respect to the payment of purchase-money or does it extend to the delayed payment with respect of the general stamp paper also ?

20. The exact question has also been answered by this Court in Arni Vividh Karyakari Sahakari Sanstha Ltd. (supra) wherein identical contention was raised. Even though the learned counsel for the petitioner has tried to differentiate this judgment on a premise that such judgment does not consider certain provisions and more particularly the entire legislative scheme found in Order XXI Rules 84 to 92; I am hardly impressed by this contention. In paragraphs 18 to 21, this Court has succinctly described the entire scheme of the said Rules and has negated the very contention raised by the petitioner herein. I entirely agree with the reasoning of this Court in the said judgment.

21. One more reason to disagree with the contention raised by the petitioner is the proviso to sub-rule (2) of Rule 92 (State amendment) which in my view, grants enough leverage to the Court to grant such time as it deems fit for clearing any deficiency with respect to payment of stamp paper. As can be seen from the said proviso, it contains a non-obstante clause and therefore obliterates the consequences provided under Rule 86. It is noteworthy to mention that Rule 86 provides for procedure in default of payment and contemplates that if there is default of payment, the property shall be re-sold and the defaulting purchaser shall forfeit all claim to the property. Admittedly, there is no State amendment to Rule 86 that is the precise reason the State amendment to Rule 92 takes care of such contingency. The non-obstante clause in present provisions of Order XXI Rule 92 (State amendment), in my considered opinion, would entirely wipe out all the contentions raised by the learned counsel for the petitioner.

22. Furthermore, as has been rightly pointed out by the learned counsel appearing for the auction purchaser i.e. respondent No.21 that the Hon’ble Apex Court in State of Punjab referred supra after taking into consideration the relevant facts, has recorded a finding that sale certificate is not compulsorily registrable, it is only when the auction purchaser uses the certificate for some other purpose that the requirement of payment of stamp duty would arise. Thus, in the opinion of the Hon’ble Apex Court there is no question of payment of stamp duty and then only because the same is paid belatedly, such belated payment would not obliterate the statutory requirement where the stamp duty is not required to be paid at all. Thus, even on this ground, the contention of the counsel for the petitioner is without any substance.

23. It can thus be seen and as has been rightly pointed out by the learned counsel for respondent No.1 that the present petitioner is the only one who is obstructing the execution of decree by filing application one after other.

24. Taking over all view of the matter, I am of the considered opinion that there is nothing incorrect in the order of the trial Court in allowing the application for condonation delay in paying stamp duty. There is no perversity in the impugned order. The petition therefore lacks merit and is liable to be rejected. The same is rejected.

Rule stands discharged. No order as to costs.