Dua, J. - (1.) THIS revision is directed against the order of the learned Senior Subordinate Judge, Ambala, dated 13th October, 19dl by means of which the Court below has forfeited one -fourth of the sale money deposited by the petitioner.
(2.) THE facts necessary for understanding the present controversy are that the petitioner had purchased some property at Court auction. One -fourth of the sale money was duly deposited but the balance could not be deposited within time. The Court below cancelled the auction -in favour of the petitioners and directed the property to be re -sold, also contemporaneously directing forfeiture of l/4th sale money. Of course the balance of the sale money was actually deposited though after the prescribed period. The learned counsel for the petitioners has submitted that the Court below had no jurisdiction to forfeit any portion of the sale money and as an alternative he has contended that in any case the petitioners should have been given an opportunity of showing cause against such forfeiture. He has in support of his contention relied, to begin with, on Asharfi Lal v. Ram Shankar etc., A. I. R. 1994 Oud. 429, the head -note of which is in the following terms: The auction -purchaser deposited one -fourth of the purchase money on the date of sale but failed to deposit the rest within 15 days under Order 21, Rule 85, within 30 days of the sale the judgment -debtor applied to set aside the sale under Order 21, Rule 89, depositing the necessary amount. The decree -holder accepted the deposit and agreed to cancel the sale as he did not want the property to be sold again. The Court, however, purporting to act under Order 21, Rule 86, ordered that one fourth deposit made by the purchaser should be forfeited to the Government after defraying the expenses of sale as he had failed to deposit the remaining three fourths within time. Held : that the Court acted with material irregularity in ordering the forfeiture where there was no question of re -sale within Order 21, Rule 86. The purchaser was not, however, entitled to 5 per cent of purchase money under Rule 89 owing to his failure to pay the full price within time. It is obvious that this decision deals with its own peculiar facts and does not support the broad proposition canvassed by the petitioner's learned counsel. Lahrumal v. Taromal, A I R. 1937 Sin. 311, a decision by a Division Bench of the Sind Judicial Commissioner's Court, has next been relied upon. The head -note of this case is in the following words : In execution of a decree certain property of the judgment -debtor was sold. Before such sale the decree -holder had applied for leave to bid at the auction sale and the leave was granted. He however, had omitted to apply under Order 21, Rule 72, Civil Procedure Code, to set off. The property was purchased by the decree -holder who deposited 25 per cent of the purchase money but the balance was paid by him one day late. The Court without considering the question that the delay might be due to the bona fide mistake about the date of the payment or the question of possible prejudice which could have been caused to the judgment -debtor by the delay of one day, ordered that the whole amount deposited be forfeited and property re -sold : Held, that the order forfeiting the whole amount was without jurisdiction and even though the Court had jurisdiction to forfeit 25 per cent deposit under the circumstances it was a sufficient punishment to the purchaser decree -holder for his mistake to hold him liable only for cost of the re -sale of the property under Order 21, Rule 86, Civil Procedure Code. Here again, it is clear that the broad proposition of law enunciated by the counsel before me is not supportable on the ratio of this case. G. Mohite v. Keshrichand, AIR 1901 Nag. 120, is a decision by Hallifax, A. J. C, laying down that the wording of the Rule 8 of Order 21 (Civil Procedure Code) clearly indicates an intention that it is not forfeiture which is to be regarded as the normal course in the absence of cause shown to the contrary but rather the return of the money to the auction purchaser and that forfeiture can only be justified as a penalty in order to prevent that laxity and delay which result in wastage of the time of the Court and the parties. Where there was delay but no laxity, forfeiture, according to this decision, should not be ordered because it is not to be used as a means of bringing monthly into the coffers of the Government. In this case no one had appeared for the respondent before the learned Additional Judicial Commissioner and the case was thus decided ex parte. This decision is, however, of some assistance to the petitioners' counsel. Raghunath Lenka v. Karunakar : A. I. R. 1957 Ori. 257, a decision by a learned Single Judge of that Court, has next been relied upon. In this case, the auction -purchaser was ready with the money of the 15th day at 10.30 a. m. and actually presented the challan to be passed by the Munsif, but unfortunately the challans were passed late on account of laches of some officer and the money could not be deposited in the treasury in time. On these facts, the order of the Munsif rejecting the petitioners' prayer for refund of the balance of the earnest money was set aside as tainted with illegality and material irregularity in the exercise of the Court's jurisdiction; and it was observed that the auction -purchaser was entitled to a refund of the such after defraying the expenses of the sale, as prayed by him. Here again, the broad proposition enunciated by the learned counsel is not supportable on the ratio of this case. Turning to the statutory provision, Order 21, Rule 86, which prescribes procedure in default of payment of purchase money, lays down that in default of payment within the period mentioned in Rule 85, the deposit may, if the Court thinks fit, after defraying the expenses of the sale be forfeited to the Government, and the property should be re -sold and the defaulting purchaser should forfeit all claim to the property or to any part of the sum for which it may subsequently be sold. This provision clearly vests the Court with power to forfeit to the Government the deposit made by the auction -purchaser but of course it does not lay down any mandatory provision that the Court must so forfeit. Another noteworthy factor is that the Court has to consider the question of forfeiture after defraying the expenses of the sale. This clearly suggests that in so far as the expenses of the sale are concerned, the Court has to defray those expenses out of the deposit made by the defaulting auction -purchaser. At this stage, it would not be inappropriate to refer to Rule 6 of Chapter 10 -B, High Court Rules and Orders, Vol. I According to this Rule, in the event of an order of forfeiture of the earnest money mentioned in Order 21, Rule 84, Civil Procedure Code, becoming necessary, the presiding officer of the Court ordering the sale is enjoined to prepare for submission to the Accountant General at the beginning of the month next following that in which the forfeiture occurs a statement of the sum credited to the Government under the provisions of Order 21, Rule 86; and such presiding officer is to be held responsible that the legitimate "expenses of the sale" only have been deducted from the amount deposited. This would certainly suggest that the presiding officer has to apply his mind to the question of the actual expenses of the sale and then to determine in his discretion as to how much amount should, consistently with the interest of justice, be forfeited to the Government. In the casein hand, the impugned order does not show that the learned Senior Subordinate Judge applied his mind to the aspect which he was expected by law to keep in view. It may be emphasized that where the Court of justice is expected to exercise its discretion the same should be exercised judicially and not arbitrarily, according to the legislative intent and not the whim or the unregulated opinion of the presiding officer. The reasons, therefore, for deducting the one -fourth of the sale money should appear on the face of the order so that this Court while exercising its supervisory or revisional jurisdiction should be able to discern that the order has been passed strictly within the limits of the law keeping in view the legal principles guiding the exercise of discretion.
(3.) THE impugned order must, therefore, be set aside and the case remitted back to the Court below for deciding the question of forfeiture of the deposit in accordance with law and in the light of the observations made above.;