P L D 1959 (W (PLP)

Karam Elahi Khan for Respondent No.

1. On 28‑4‑58, half portion of the house, bearing No. 7‑5/52, situated on Togni Road, Quetta, was auctioned, under the orders of the Senior Civil Judge. In the proclamation, it had been announced, that the house was subject to mortgage in the sum of Rs. 22,

000. At the time of the auction the auctioneer announced that the highest bidder would have to deposit 1/4th of the amount, which was in excess of Rs. 22,

000. The applicant was the highest bidder, and, as his bid was Rs. 26,000, he was called upon by the auctioneer to deposit 1/4th of Rs. 42,00 it being in excess of Rs. 22,000. and the applicant deposited 1,050 which is 1/4th of Rs.4,200 Subsequently, on 10‑5‑58, the auctioneer, under the direction of the Court, served the applicant with a notice, informing him, that the deposit, which he was required to pay, was not 1/4th, of the excess amount, but it was 1/4th of the purchase‑money, and consequently he had to pay Rs. 6,500 and not 1,

00. He was therefore asked to make good the deficiency. The applicant; in his reply dated 12‑5‑58, contended that he had been misled by the announcement, made by the auctioneer at the site. According to him, he had to pay only 1/4th of the excess amount, and as for the mortgage money, he was required to pay the same to the mortgagee. He further stated that if this contention was not accepted, the deposit should be returned to him. The learned Senior Judge rejected this plea of the appli cant, holding that the applicant was to deposit 1/4th of the purchase‑money and the purchase‑money was the mortgage money plus is Rs. 4,

200. He then called upon the applicant to pay the full amount, as the period of 15 days, in which he had to pay the balance, as required by Order XXI, rule 85, was going to be over, or also his deposit would be forfeited. The amount was not paid. The learned Judge, then on 17‑5‑58, passed an order, the operative part of which is as under".

The Court is not calling upon the auction‑purchaser to pay anytime over and above whatever he has actually offered and he has failed to comply with the orders regarding full payment within the meaning of Order XXI rule 85, C. P. C. I hereby order that the amount over and above the auctioneer's commission shall stand forfeited to Government, if not paid within three days of this order, and shall be deposited in the Government Treasury as Government revenue . . . . . . The house again be put to auction according to law on 2nd July, 1958, and report submitted on 7‑7‑58." Then, on 26‑5‑58, the learned Judge on the failure of the applicant to pay the balance of purchase‑money passed an order, the operative part of which is as under :‑ " . . . . . . Auction purchaser has failed to deposit the auction money. 1/4th of the deposit hereby stands forfeited to Government. He was required to deposit it on 20th . . . . . . Mr. Mirza, the learned counsel for the applicant contended, that the order of forfeiture, passed by the Court, is illegal as accord ing to him, rule 84 of Order XXI, C. P. C. applied to his case. He therefore argued, that on his failure to deposit the, amount, the only course left open to the auctioneers was to re‑sell the property. He says that the learned Judge, instead of doing so, has taken Action under rule 86 of Order XXI, C. P. C. on the ground of his failure to pay the balance of talc purchase‑money, as required by Rule 85 of the same Order. His argument is that when he was asked by the auctioneer to pay 1/4th of the, excess amount, he thought, he had merely to pay the balance cat that amount within 15 days, as required by Rule 85, and as for the mortgage amount, he says that his client was under the impression, that he had to pay that amount to the mortgaged I see no substance in this contention. Rule 84 of Order XXI, provides, that on every sale of immov able property, the person declared to be the purchaser, shall pay immediately after such declaration, deposit of 25% on the amount of purchase‑money, to the officer or other person conducting the, sale and in default of such deposit, the property shall forthwith be re‑sold." This Rule requires that the auction‑purchaser has to deposit 1/4th of the purchase‑money while the applicant paid 1/4th of the excess amount. But, since this amount was accepted by the auctioneer, it being sufficient or proper for the purpose of deposit according to him, the question of re‑selling the property under Order XXI, rule 84 in that case did not arise. It is true, that after this mistake on the part of the auctioneer was brought to the notice of the Sub‑Judge, the latter directed the auctioneer to recover the difference from the applicant. But, the main fact, which has been last sight of by Mr. Mirza, is, that the order passed by the learned Civil Judge, whereby he forfeited the amount, deposited by the applicant, was not grounded on the failure of the applicant to deposit the balance of 1/4th of the purchase‑money. He has been penalised for his failure to pay the balance of the full amount of purchase‑money, as required by Rule 85 of Order XXI C. P. C. Rule 85 provides that the full amount of purchase‑money payable, shall be paid by the purchaser into Court, before the Court closes on the 15th day from the sale of the property." In this case the applicant has admittedly not paid the full amount till today. The penalty for non‑compliance with the provision of Rule 85, is provided in Rule 86, which says "In default of payment within the period mentioned in the last preceding rule, the deposit may, if the Court thinks fit, after defraying the expenses of the sale, be forfeited to the Government and the property shall be re‑sold, and the defaulting purchaser shall forfeit all claim to the property or to any part of the same for which it may subsequently be sold." The learned Judge had therefore to act under Order XXI, rule 86, and no other. The contention of the learned counsel for the applicant is untenable, for the simple reason, that whatever money he deposited immediately after his bid was knocked down, was accepted by the auctioneer, wrongly or rightly, as sufficient for the purpose of Rule

84. Therefore at that stage, the question of re‑selling the property, could, by no stretch of imagination, arise. That question would have arisen if he has failed to pay what he was asked by the auctioneer to pay. But that is not what has happened in this case. The auctioneer would have acted in contravention of the provisions of Order XXI rule 84, if, after accepting the deposit, he had re‑sold the property. Indeed he would have exposed himself to the charge of breach of faith, if he bad done so. It is also to be remembered that the action of the auctioneer, in accepting less amount than what the applicant was required under the law to deposit, was by no means to the disadvantage of the applicant, and hence he could not make a grievance of it; or say that because he was permitted to pay less amount‑ he would be entitled to escape the liability which he had incurred by being the highest bidder. Law does not permit him to wriggle out of his commitment. He has now to comply with the provisions of Order XXI rule

85. Whether he had to deposit Rs. 1,050 of Rs. 6,500 after the bid was knocked down, his position as contemplated by Order XXI, rule 85, remains unchanged Under that Rule, he had to pay full amount of the purchase‑money within a fortnight of the sale, whether the balance was 26,200 minus 1,050 or 26,200 minus 6,

500. It would be former if he failed to deposit 1/4th of the purchase‑money, and latter if he did so. The words full amount of the purchase- money employed in Order XXI, rule 85, and not the words seventy five percent of the purchase‑money, are .not without purpose, They are obviously designed to meet a case such as this, that is when the auctioneer, through mistake, has accepted less than twenty five per cent of the purchase‑money, or through oversight, has not at all asked the purchaser to deposit the amount, or the auctioneer, knowing the party to be financially sound, does not insist on payment of twenty five per cent (although the latter course is not permissible under the law). The provision of requiring deposit of twenty five percent of the purchase‑money is merely to ensure payment of the balance. It is more or less in the nature of an earnest‑money. The provision is obviously not meant for the benefit of the auction‑purchaser. He therefore cannot complain if the provision is not complied with or complied with to his advantage. The argument that he was led by the announcement of the auctioneer to believe that he had merely to pay 3/4th of the excess money, and not 3/4th of the purchase‑money is based neither on facts, nor on any provision of law. The proclamation, the contents of which were admittedly known to the applicant, does not say that the highest bidder will have to deposit 1/4th of the amount in excess of the mortgage money, nor does it contain any statement to indicate, that thereafter the auction‑purchaser was merely to pay the balance of the excess money, and not the balance of the pur chase‑money. It also does not say that it was open to the auction- purchaser to pay the mortgage amount to the mortgagee. It is also not his 'case that the auctioneer, when he announced, that the highest bidder had to deposit 1/4th of the excess amount, also announced that it would be open to the auction‑purchaser to pay the mortgage amount to the mortgagee and not to Court. The position is therefore quite clear that 1/4th of the purchase‑money has to be deposited at the time of the knocking down of the bid, as required by Rule 84, and the balance, after 15 days as required by Rule

85. It is quite clear that the property was knocked down for the mortgage money plus Rs. 4,

200. I therefore feel no hesitation in repelling this contention of learned counsel for the applicant. His second contention is that the learned Judge, before passing the final order, was bound to wait for the payment, up to 26‑5‑58, as mentioned in the notice, and consequently his order dated 17‑5‑58 was illegal. This contention is also untenable." In the first place, it is not correct to say that the order of forfei ture was passed on 17‑5‑

58. What is said in this order is "and he has failed to comply with the orders regarding full payment within the meaning of Order XXI, rule 85, C. P. C. I hereby order that the amount over and above the auctioneer's commission shall stand forfeited to Government if not paid within 3 days of this order. "Thus this order was to be effective on 20th of May, 1958, if by that time the full amount not paid. But, even on 20th, the final order was not passed. It was passed on 26‑5‑58, and this is what the order says : "The auction purchaser has failed to deposit the auction money. The 1/4th of the despoit hereby stands forfeited to Government. He was required to deposit by 20th . . . . . . " So the order, which was finally passed, was passed not on 17‑5‑58, but on 26‑5‑

58. In fact, in view of the refusal on the part of the applicant to pay full amount, which refusal was communicated to the Court on 12‑5‑58, any discus sion on this point will have merely as academic value. The application is dismissed with costs. K. M. A. Petition dismissed.