OFFICIAL ASSIGNEE OF BOMBAY Vs. JEHANGIR SORABJI DALAL

JUDGEMENT

(1.) THIS is in the nature of a mortgage suit. The preliminary mortgage decree was passed on January 17, 1941. The decree absolute for sale was passed on August 7, 1941, and the mortgaged properties were ordered to be sold by the Commissioner of this Court. By a consent order dated April 10, 1942, it was ordered that the properties should be sold in eight lots. On October 22, 1942, the Commissioner put up the properties for sale. Lots Nos. 2 to 8 were first put up for sale but were not sold as the reserved bids were not reached. The Commissioner then put up lot No.1 for sale. THIS lot was purchased by one Fateh Mahomed Usman for Rs. 43,000. A sum aggregating to Rs. 1,53,881-7-5 is certified by the Commissioner to be due to the plaintiffs, defendant No.4 and defendants Nos. 5, 6 and 7, the various mortgagees who have been impleaded in the suit. Defendant No.2 who is the mortgagor has brought into Court a sum of Rs, 1,56,500 which includes the afore-mentioned sum of Rs. 1,53,881-7-5 and a sum of Rs. 2,150 which is five per cent of the purchase money, viz. Rs. 43,000 for which sum the property was knocked down to the purchaser Fateh Mahomed Usman.

(2.) THIS summons is taken out by the mortgagor, defendant No.2, for an order that the sale of lot No.1 be set aside under the terms of Order XXI, Rule 89, Civil Procedure Code. It will be observed that the mortgagor has complied with the provisions of that rule inasmuch as he has deposited in Court a sum equal to five per cent of the purchase money and also the amount due to the various mortgagees under the decree absolute for sale.

(3.) MR. Coltman argues that in that case it was not expressly decided that Order XXI, Rule 89, applied to the Original Side of the High Court. Order XLIX, Rule 3, mentions the rules which do not apply to a Chartered High Court in the exercise of its ordinary or extraordinary Original Civil Jurisdiction, and one does not find Order XXI, Rule 89, as one of the rules mentioned in Order XLIX, Rule 3 . Therefore, unless there are rules framed by the High Court on its Original Side which are in any way inconsistent with or repugnant to Order XXI, Rule 89, it is clear that that rule would apply to the High Court in its Original Civil Jurisdiction. It must also be borne in mind that in Manaji Kuverji v. Armita, very eminent counsel appeared before the Court of Appeal when the decision of MR. Justice Pratt was appealed from. It was never suggested that Order XXI, Rule 89, had no application. On the contrary the whole judgment of Macleod C.J. proceeds on the assumption that that rule does apply to the High Court in its Original Civil Jurisdiction.