GOWAL DAS SIDANY Vs. LUCHMI CHAND JHAWAR

JUDGEMENT

(1.) In this case, the petitioner instituted a suit for the recovery of a sum of money due under a deed of charge and, obtained a decree, under which the property charged was put up for sale by the Registrar and one Khagendrahath Sen was declared the highest bidder and purchaser and paid Rs. 7,500 as deposit under the conditions-of sale. Subsequently, he failed to pay the balance of the purchase money. The petitioner now asks that the deposit of Rs. 7,500 be declared forfeited. He states that he decided to treat the contract as rescinded and does not, therefore, ask for an order against the purchaser to pay any deficiency arising on a resale.

(2.) My attention has been drawn to Order 21 Rule. 86, Civil P.C., which provides that in sales of immovable property by the Court, any deposit made under Section 84 may, if the Court thinks fit, after defraying the expenses of the sale, be forfeited to Government and the property shall be resold and the defaulting purchaser shall forfeit all claim to the property or to any part of the sum for which it may subsequently be sold. But Section 129 of the, Code provides that, notwithstanding anything in the Code, the High Court may make such rules not inconsistent with the Letters Patent to regulate its own procedure in the exercise of its original civil jurisdiction. Reading that rule and the section together, I am of opinion that the rule does not apply when a High Court has made rules regulating its own procedure in the exercise of its original civil jurisdiction which are not inconsistent with the Letters Patent. In coming to this conclusion, I am not in any way disagreeing with the judgment of Mookerjee Ag. C.J., in Virjiban Dass Moolji V/s. Biseswarlal Hargovind A.I.R. 1921 Cal. 169. That case dealt with Rule 89 and it was held that that rule applied to sales under a mortgage decree on the original side of the High Court. The rules of the High Court did not provide for the matters contained in Rule 89 and, as the Code itself, except for specific sections, applied to all the Courts of British India, obviously Rule 89 applied. The position as to Rule 86 is different, because provision has been made in rules, which are not inconsistent with the Letters Patent, for the conduct of sales by the Registrar. Those rules are contained in Chap. 27, of the rules of this Court. Under those rules the mortgagee has the carriage of the proceedings relating to the sale which is regulated by conditions in writing, under which the purchaser must make a deposit of 25 per cent, of the purchase-money with the Registrar at the time of the sale. Rule 19 provides that the attorney of the party having the carriage of the proceedings shall be present at the sale, and under Rule 23, if the deposit, to which I have referred, is not made, the bid of the purchaser shall foe rejected and the property again immediately put up for sale unless the party having the carriage of the proceedings decides that the bid shall be accepted and time allowed to the purchaser to pay the amount payable by him. Rule 37 specifically provides that, where a sale is set aside, owing to defect in title or other similar cause, the purchaser shall receive back his deposit. Under Rule 38, the purchaser may apply for leave to pay the balance of his purchase- money into Court i.e., to pay the difference between the amount of his deposit and the total amount of his bid.

(3.) Under Rule 39, any party interested may apply to compel the purchaser to pay his purchase-money and comply with the conditions of sale, and Rule 65 provides the form which must be used under this chapter. That form is contained in Appendix J, which sets out the conditions of sale. Condition 5 provides for the deposit of 25 per cent. Condition 8 provides for the payment of the purchase-money after deducting the amount paid as a deposit. Condition 13 provides that, where the purchaser makes default in paying the balance of his purchase- money, an order may be made by a Judge in Chambers for the resale of the property and for payment by the purchaser of the amount of the deficiency, if any, in the price which may be obtained upon such resale and all costs and expenses occasioned by such default. Presumably "deficiency" means the difference between the amount of the original bid and the amount paid on the resale. The condition is silent as to whether in calculating that deficiency credit for the amount of the deposit must be allowed.