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Raja Bahadur Motilal (Bombay) Mills Ltd. Vs. Life Insurance Corporation of India and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberSuit No. 454 of 1949 and Appeal No. 155 of 1970
Judge
Reported inAIR1972Bom1; (1971)73BOMLR523; ILR1972Bom552
ActsBombay High Court (Original Side) Rules, 1957 - Rules 310 and 500-A; Code of Civil Procedure (CPC), 1908 - Order 21, Rule 84
AppellantRaja Bahadur Motilal (Bombay) Mills Ltd.
RespondentLife Insurance Corporation of India and ors.
Appellant AdvocateD.R. Dhanuka and ;D.R. Zaiwala, Advs.
Respondent AdvocateG.A. Thakkar, ;S.T. Tijoriwala, ;M.S. Sanghavi and ;V.G. Pittie, Advs.
Excerpt:
bombay high court rules (o.s.). rules 500-a, 497, 1086, 310 - civil procedure code (act v of 1908), order xxi rules 72, 84, 85; order xxxiv rules 5(3), 4(1), 10, 13--mortgagee granted liberty to bid and set-off whether on purchase can set-off deposit amount of 25 per cent.--such mortgagee whether entitled to set-off estimated costs subsequent to decree absolute for sale--amount to which rule 500-a (ii) applies--whether mortgagee can ask for extension of time in proceeding taken out by mortgagor--discretion to grant extension of time whether available to court hearing appeal against order of chamber judge.;where the mortgagee-decree-holder is declared the purchaser and he has been granted liberty to bid and set-off, then even though there is no specific order permitting the set-off.....mody, j. 1. this is appeal against the order dated 2-11-1970 made by mr. justice nain as chamber judge dismissing the appellant's chamber summons dated 12th october 1970, the reliefs prayed whereby we will set out a little later.2. the appellant which was the owner of an immovable property in bombay, mortgaged that property in favour of the first respondent by an indenture of mortgage dated 20th april 1946. the second respondent, who has at all material times been a director of the appellant mills guaranteed the said mortgage debt. thereafter, the appellant created a second mortgage on that property in favour of the third respondent. the first respondent thereafter filed a suit, begin suit no. 454 of 1950 in this court for realising the debt and the security under the said mortgage making.....
Judgment:

Mody, J.

1. This is appeal against the Order dated 2-11-1970 made by Mr. Justice Nain as Chamber Judge dismissing the appellant's Chamber Summons dated 12th October 1970, the reliefs prayed whereby we will set out a little later.

2. The appellant which was the owner of an immovable property in Bombay, mortgaged that property in favour of the first respondent by an Indenture of Mortgage dated 20th April 1946. The second respondent, who has at all material times been a director of the appellant Mills guaranteed the said mortgage debt. Thereafter, the appellant created a second mortgage on that property in favour of the third respondent. The first respondent thereafter filed a suit, begin suit No. 454 of 1950 in this court for realising the debt and the security under the said Mortgage making the appellant and respondents Nos. 2 and 3 as defendants to that suit. On the 9th of August 1949 a Preliminary Mortgage Decree was passed and thereafter on the 28th of June 1950 a Decree absolute for sale was passed. Under the decree absolute for sale liberty was given to the first respondent to bid and set off the purchase money against the debt declared due to it under the Mortgage Decree. Thereafter there followed eighteen infructuous auction sales. The nineteenth auction sale was held on the 11th of September 1970 where the first respondent's bid of Rs. 20,00,000/- was accepted by the Commissioner subject to the sanction of the court. Although the conditions under which the auction sale was held required a deposit being made of 25 per cent of the purchase price, no deposit was made. The purchase price well exceeded the amount due to the first respondent under the Decree absolute for sale and the first respondent paid the amount of the excess to the Commissioner after retaining out of the said amount a sum of Rs. 75,000/- being its estimated costs of the suit and of the sale. The appellant thereafter took out the said Chamber summons praying that it may be declared that there was no sale in favour of the first respondent which in other words means that the sale was a nullity and that the said sale be set aside. Mr. Justice Nain dismissed that Chamber summons by his said Order dated 2nd November, 1970. The appellant has hence appealed against that Order.

3. Before dealing with the rival contentions of the parties, it is necessary to first set out all the necessary facts in greater detail.

4. The Preliminary Mortgage Decree declares that on the date of that decree there was payable by the appellant to the first respondent on aggregate sum of Rs. 11,44,617.75, grants to the appellant six months' time for redemption, makes a further declaration in respect of further interest till the date fixed for redemption, declares that there shall also be payable 'the costs of the suit when taxed as between attorney and client and noted in the margin' thereof and simple interest on such costs at the rate of four per cent per annum from the date of the Decree till payment and then further declares the amount then due and payable to the third respondent under the Second Mortgage. That Decree also contains a decree against the second respondent for the amount mentioned in the Decree as payable under his guarantee to the first respondent.

5. No amount whatever having been paid in respect of the Preliminary Decree, the said Decree Absolute for sale was passed. Under that decree the first respondent was given liberty 'to bid at the said sale and that in the event of the plaintiffs becoming the purchasers of the said immovable property they be at liberty to set - off the amount of the purchase money against the amount due to them under the said consent Preliminary Mortgage Decree and 'the costs hereinafter mentioned'. The costs mentioned after the above clause were a sum of Rs. 220/- being the costs of the Notice of Motion for obtaining the said Decree absolute for sale. The said several auction sales were held subject to certain terms and conditions of sale. The eighteenth auction sale was held in September 1966 and condition No. 5 in respect of that sale provided as follows :

'The plaintiffs and the third defendants have been given liberty to bid. The purchaser other than the plaintiffs shall at the time of sale pay a deposit of twenty five per cent, of the amount of his purchase - money to the commissioner, otherwise the property shall be again immediately put up and re - sold on account and at the risk of the defaulting purchaser who shall be liable to make good any deficiency thereby caused but shall not be entitled to any excess in price obtained on such resale.'

In respect of the next i.e., nineteenth, auction sale the said terms and conditions of sale were adopted but with certain changes made therein. so far as the said condition No. 5 is concerned, the only change was that the words 'other than the plaintiffs' were omitted.

6. The said nineteenth auction sale was held on the 11th of September 1970 by the Commissioner of this Court. As is usual the Commissioner has made his Minutes as to what transpired at the said auction sale. The Minutes show that no outsider bidder at all was present at the said auction sale. On behalf of the first respondent a bid was given of Rupees 18,00,000/- but was later raised to Rupees 20,00,000/-. In the absence of any competing bid the fact that the bid of Rs. 18,00,000/- was raised to Rupees 20,00,000/- shows from common experience that the Commissioner must have refused to accept the bid of Rs. 18,00,000/- as being below the reserve bid fixed for the auction. It may be stated here that in sales by auction by the Commissioner, but when it is necessary to be reduced it is reduced by the Chamber Judge and all the reserve bids, whether fixed by the Commissioner or by the Chamber Judge, are never divulged. The Commissioner has recorded in his minutes that he accepted the bid subject to the sanction of the court and thereafter 'No deposit is taken from the L. I. C. as the L. I. C. has been permitted by the court to bid and set - off their claims against the sale price. The plaintiffs are directed to pay the balance of the purchase price after deducting the amount of set - off together with the amount of stamp duty payable on the conveyance to be executed or on the sale Certificate to be issued within 30 days.' As recorded in the Minutes, the first respondent has not deposited the sum of Rs. 5,00,000/- being the 25 per cent of its purchase price of Rs. 20,00,000/-.

7. Thereafter on 30th September 1970 the Attorneys for the first respondent addressed a letter to the Commissioner. The letter states that the amount due to the first respondent, as at the date of the sale for principal and interest was Rs. 16,13,163.21 and that in addition, a further amount would also be due to it for costs. It then states that the suit was of 1949 and considerable costs had been incurred, including the costs of eighteen auction sales, and that taxation of all such costs would take a long time and that therefore the first respondent roughly estimated the costs at Rupees 75,000/-. The letter then requests that the first respondent may be allowed to add the said estimated costs to the aforesaid sum of Rs. 16,13,123.21 making the total sum of Rs. 16,88,163.21. The letter then states that the costs would be got taxed or settled in due course and that if they exceeded the said sum of Rupees 75,000/- the first respondent would recover the excess amount from the commissioner from the amount to be deposited with him but in case the taxed costs were less than the estimated costs, the first respondent would make a further deposit of an additional sum and would give to the Commissioner an undertaking that in case the taxed costs were less than the said sum of Rs. 75,000/- it would pay to the Commissioner the balance. It contains a further statement about the amount of stamp duty which is not relevant to this appeal. The letter contains certain calculations and a statement that the amount payable by the first respondent to the Commissioner would be Rs. 5,00,556.79.

8. The first respondent thereafter filed before the Commissioner an affidavit dated 5th October 1970 of Bodhraj Bhanda, by the fourth paragraph whereof the first respondent gave an undertaking to pay to the Commissioner whatever balance may be found due and payable by it in respect of the said costs in case the said costs were found to be less than Rs. 75,000/- on taxation by the Taxing Master of this Court. Thereafter the first respondent through its Solicitor paid to the Commissioner the said sum of Rs. 5,00,556.79.

9. In support of the appellant's contention that the sale is no sale in law or that the sale should be set aside. Mr. Dhanuka, its learned counsel contended that under the relevant provisions of law, it is a mandatory requirement firstly, that the 25 per cent of the purchase price must be deposited at the time of the sale and secondly that the whole balance of the purchase price must be paid to the Commissioner within thirty days from the date of the sale. He contended that the first respondent however, did not make the said deposit of 25 per cent or any part thereof, nor did the first respondent pay the amount of Rs. 75 per cent balance in full, but deposited such amount after retaining the said sum of Rs. 75,000/-.

10. In support of his contention Mr. Dhanuka relied upon Rr. 500 - A and 497 of the Rules of this Court applicable on its Original side, which rules are hereinafter referred to as 'the Original Side Rules'.

11. The said Rule 500 - A provides as under : -

'500 - A (i) : - When immoveable property is to be sold unless otherwise ordered or agreed to by the parties, not less than twenty five per cent of the purchase money shall be deposited with the Commissioner at the time of the sale.

(ii) The balance of the purchase - money or so much thereof as may be payable by reason of any set - off to which the purchaser may be entitled, together with the amount of stamp - duty payable on the conveyance to be executed or on the sale certificate to be issued, shall unless otherwise ordered, be paid by the purchaser to the Commissioner within thirty days from the date of the sale. The Judge sitting in Chambers may for special reasons, extend the time for payment on such conditions as to payment of interest or otherwise as to the Judge may seem fit. If the Judge extends the time the provisions of Clause (iv) shall not come into operation until the expiry of the extended time. (iii) in default of payment of the deposit mentioned in sub - rule (i) the bid of the person who would otherwise have been declared the purchaser shall be rejected and the property shall forthwith be resold. (iv) In default of payment of the amounts mentioned in sub - rule (ii) within the period prescribed therein, the deposit may, if the Judge thinks fit, after defraying the expenses of the sale, be forfeited to the Government, and the property shall be resold and the defaulting purchaser shall forfeit all claims to the property or to any part of the sum for which it may subsequently be sold. (v) Any deficiency of price which may arise and all costs and expenses occasioned by such resale shall be recoverable from the defaulting purchaser under an order to be obtained from the Judge in Chambers. The Judge may direct the defaulting purchaser to pay interest at such rate from the date of default and on such amount as to Judge may seem just.'

12. The said Rule 497, in so far as it is material, provides that when immoveable property is to be sold, the conditions shall be adapted to the state of the title to the said property and that the conditions of sale shall be in Form No. 151 of Form No. 152 as the case may be with variations as the circumstances of each case may require.

13. Mr. Dhanuka contended that under sub - rule (i) of the said Rule 500 - A the 25 per cent deposit must be made on the date of the sale 'unless otherwise ordered or agreed to by the parties', but there was no such specific order 'otherwise ordering' nor was there anything 'otherwise agreed to by the parties.' He pointed out that there was such a provision contained in the said old Condition No. 5 applicable to the eighteenth sale, but that in the revised condition No. 5 applicable to the last sale such a provision was omitted from condition No. 5 by deleting the words 'other than the plaintiffs.' He contended that this is a deliberate departure. Mr. Thakkar, the learned counsel for the first respondent, contended that this omission from the condition No. 5 was due to the fact that between the two dates of the said old and new conditions, the Original Side Rules were revised, certain Rules were deleted and the said New R. 500 - A was introduced and that it is because of that reason that it was considered to be unnecessary and redundant to retain the words 'other than the plaintiffs' as liberty to bid and set - off given to the first respondent could set - off the mortgage debt against the amounts of both the deposit of 25 per cent and the payment of the balance of 75 per cent.

14. Now under Rule 500-A (I) deposit is not to be made if it is otherwise ordered or it is so agreed. Whether the omission from the new Condition No. 5 of the said words 'other than the plaintiffs' be a deliberate departure as contended by Mr. Dhanuka or it be due to having been made on the ground that it was considered to be unnecessary and redundant as contended by Mr. Thakkar, it is clear that there is no specified agreement between the parties dispensing with the requirement of the 25 per cent, deposit in case the first respondent became the purchaser. As there is no such agreement between the parties, it has next to be ascertained whether it has been 'otherwise ordered'.

15. Mr. Thakkar contended that the liberty to set-off granted to the first respondent by the Decree Absolute for sale must be construed as having been 'otherwise ordered' by the Court as contemplated in sub-rule (I) of R. 500-A either expressly or, in any event impliedly. In our opinion, it is obvious that there is no such express order made by the Court. Mr. Thakkar also relied upon the said Minutes of the Commissioner dated 11th September 1970 and argued that it was such an order. These Minutes are what they purport to be i.e. a record of what transpired at the meeting before the Commissioner when it says that no deposit was taken from the first respondent. The Minutes merely record a statement of fact and do not amount to an order dispensing with the deposit of 25 per cent. It is a statement of fact and not an order. It is, therefore, unnecessary to decide whether the commissioner has or does not have the power to 'otherwise order' i.e. to make an order dispensing with the requirement of sub-rule (I) of Rule 500-A for a deposit of 25 per cent. It must, however, be borne in mind that sub-rule (I) of Rule 500-A does not specifically provide that such 'otherwise ordered' must be a specific order. There can, therefore be an implied order. In our opinion, in a sale under a Mortgage Decree when an order is made under the Original Sale Rules giving liberty to the mortgagee decree holder to bid and set - off, the liberty to set- off would imply that to the extent of the amount of the set - off it 'otherwise orders' as contemplated by the sub- rule (I) unless, of course, the order contains a contrary or inconsistent provision. These sales are in pursuance of a Mortgage Decree and not a simple money decree. The provision in the said sub-r. (I_) for deposit of a substantial part like 25 per cent of the Purchase price together with the provision for its forfeiture, has been made with the obvious intention of guarding against bids being given by a person who is declared to be a purchaser but who does not intend to complete his purchase or is incapable of completing his purchase or subsequently wants to unjustifiably back out of his purchase. When the purchaser is the holder of the decree and the decree is a mortgage Decree, the Decree in his favour is by itself a security. Moreover even when liberty to set - off has been ordered the court has the power till the sale is confirmed to order the purchaser to bring the purchase money or the necessary part of it into court and the fulfillment of such an order by the Mortgage decree holder purchaser is secured by his Mortgage Decree itself.

16. Mr. Dhanuka pointed out that the word used in the said sub-rule (I) of Rule 500-A in connection with the deposit is 'shall' which means that the requirement of the 25 per cent, deposit is mandatory. Mr. Dhanuka further pointed out that sub-rule (iii) of Rule 500-A provides that in default of payment of the deposit mentioned in sub-rule (I) the bid of the person who would otherwise have been declared the purchaser shall be rejected and the property shall forthwith be resold and that this also shows that the provision about deposit is mandatory. In our opinion, it is not necessary for us to decide whether this provision is or is not mandatory because, even if the provision of sub-r (i for making the deposit were to be held to be mandatory as contended by Mr. Dhanuka, sub - rule (i) itself creates two exceptions, one of which is when it is 'otherwise ordered.' Such a provision would be an exception to what Mr. Dhanuka contended is a mandatory provision. In our opinion, as sub - rule (i) does not specifically require that an order, in order to hold that it has so 'otherwise ordered', must do so expressly, it can held to be of that nature even if it can held to so order even by implication. The Decree Absolute for sale in the case before us permits set - off for the full decretal amount. It does not appeal to reason or to commonsense that when the auction purchaser is himself the holder of a Mortgage Decree in his favour and it is the same court which has passed that decree which is selling the property and the decree which is selling the property and the decree is a Mortgage Decree with the result that to the extent of the amount of the decree on question of rateable distribution between the attaching creditors of the mortgagor can possibly arise, the set - off should be confined to the payment only of the balance of the purchase price, but should not be extended to the initial deposit of 25 per cent. We are of the opinion that the permitted set - off must extend to the entire purchase price, i.e., to both the initial deposit of 25 per cent and also the subsequent payment of the balance but only to the extent of the amount of the decree and that when the Court made the order permitting such set - off it has impliedly ordered that the mortgagee decree - holder purchaser is not required to make the deposit of 25 per cent. We have reached this conclusion as a matter of interpretation of the order, i.e., the Decree absolute for sale. We are, however, otherwise, satisfied that this conclusion is in accordance with what appears to be the interpretation put on it by the practice of this Court extending over a long period. These sales are effected through the Commissioner of this Court who is a permanent officer of the Court assigned the work of effecting such sales and he is not a Commissioner appointed only for effecting an individual such sale. He would normally ascertain his office practice and follow it. In this case the Commissioner has, as seen earlier, stated that he has not taken the deposit as first respondent has been granted liberty to bid and set - off. In the natural course of his work and in the background of the knowledge which he has acquired the word which he has used is 'taken'. It suggests that because of the liberty to bid and set - off he did not even ask for the deposit of 25 per cent of the purchase price being made. One of the cases cited before us but in another connection, was the judgment delivered by Martin, C. J. on behalf of the Division Bench of this High Court in Vrajlal Jivandas v. Venkataswami Lingaya ILR(1928) 52 Bom 459 : AIR 1928 Bom 123. It concerns a sale by the Commissioner of this court of an immoveable property under a Mortgage Decree under which the Mortgagee decree - holder was given liberty to bid and set - off and the mortgagee, he being the highest bidder, was declared the purchaser. The portion of the Judgment at page 463 of the Report (ILR Bom) = (at pp. 124 - 125 of AIR) refers to the certificate issued by the Commissioner in respect of that sale. The commissioner certified that at the sale of the plaintiffs in that suit were 'the highest bidders for and were, subject to confirmation by this court, declared the purchasers of the said property at the price or sum of Rs. 1,45,000/- and that I have allowed them to set off the said sum of Rupees 1,45,000/- against an equivalent part of the amount due to them under the said preliminary decree.' It is obvious from this certificate that the Commissioner allowed the entire amount of the purchase price, i.e., both the amount of the deposit of 25 per cent and the balance amount to be set - off against the amount due under the mortgage decree without taking a deposit of 25 per cent of the purchase price.

17. Mr. Dhanuka drew our attention to Rules 72, 84 and 85 of Order 21 of the Code of Civil Procedure. Now it must be remembered that under Section 129 of the Code of Civil Procedure this High Court is entitled to make Rules to regulate its own procedure in the exercise of its Original Civil Jurisdiction as it shall think fit and that this High Court has, as a matter of fact, made the said Original Side Rules. The procedure on the Original side of this High Court is governed by the Original Side Rules and not by the provisions of the Code of Civil Procedure to the extent that there are provisions in the Original Side Rules. In view of Section 129, Mr. Dhanuka himself stated that the provisions under Order 21 would not apply to sales of immoveable properties by the Commissioner of this Court. He however, stated that he would refer to the Rules in Order 21 which contain similar provisions only for the purpose of comparisons only of their contents and the interpretation put on them by decided cases. On the topics dealt with by the said three Rules of Order 21 there are specific provisions made in the Original Side Rules, and particularly in the said Rule 500 - A. Order 21 applies to sales of properties both moveable and immoveable attached in execution of simple money decrees and also to sales under mortgage decrees. rule 449 of the Original Side Rules contains the procedure for attachment and sale in execution not only of moveable, but also of immoveable properties, i.e., to sales in execution of simple money decrees and provides that the sale shall be by the sheriff. In the case of mortgage decrees it is R. 491 which applies and it provides that the sale shall be by the Commissioner of this Court and a different set of Rules, including the said Rules 497 and 500 - A, apply. Mr. Dhanuka conceded and has, as a matter of fact, argued on the basis, that it is the Original Side Rules which apply and not Order 21. In our opinion, no useful purpose would be served by referring to all the decided cases cited at the Bar relating to the said Rs. 72, 84 and 85 of O. 21 of the Code of Civil Procedure for determining whether the requirement in respect of the deposit of 25 per cent is or is not mandatory because those decisions do not construe the provisions of the relevant Original Side Rule. Nonetheless, we will refer to some of the decided cases cited on either side on the point whether the provision for deposit of 25 per cent, under R. 84 of O. 21 has or has not been held to be mandatory.

(9th March 1971).

18. Mr. Dhanuka in this behalf first relied upon a Judgment of the Supreme Court in Manilal Mohanlal v. Sardar Sayed Ahmed : [1955]1SCR108 and particularly upon the following paragraph therefrom appearing at p. 16 (of Bom LR) = (at p. 351 of AIR) which reads : -

'The provision regarding the deposit of 25 per cent by the purchaser other than the decree - holder is mandatory as the language of the rule suggests. The full amount of the purchase money must be paid within fifteen days from the date of the sale but the decree - holder is entitled to the advantage of a set - off. The provision for payment is however, mandatory (Rule 85). If the payment is not made within the period of fifteen days, the court has the discretion to forfeit the deposit, and there the discretion ends 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 to the property (Rule 86).'

He contended that this passage shows that the provision regarding the deposit of 25 per cent, under Rule 84 and the payment of the balance of 75 per cent, under Rule 85 is mandatory. Mr. Dhanuka's argument, however, does not take due notice of what the Supreme Court has said, viz., that these observations apply to a purchaser 'other than the decree - holder.' It is clear that the Supreme Court has not said, nor had it an occasion to say that when the purchaser is a decree - holder the requirement of the deposit of 25 per cent, under Rule 84 is mandatory. In the paragraph immediately preceding the paragraph quoted above, the Supreme Court, after analyzing the scheme of Rules 72, 84 and 85 of Order 21 has observed :-

'The scheme of the rules quoted above may be shortly - stated. A decree - holder cannot purchase property at the court auction in execution of his own decree without the express permission of the Court, and that when he does so with such permission he is entitled to a set - off but if he does so without such permission then the Court has a discretion to set aside the sale upon the application by the judgment - debtor or any other person whose interests are affected by the sale (Rule 72). As a matter of pure construction this provision is obviously directory and not mandatory. See Radha Krishna v. Bisheshar Sahay, 25 Bom LR 630 : AIR 1922 PC 336. The moment a person is declared to be the purchaser, he is bound to deposit 25 per cent of the purchase - money unless he happens to be the decree - holder, in which case the court may not require him to do so. (Rule 84).'

This quotation clearly shows that according to the Supreme Court the provision about the deposit of 25 per cent when the purchaser of a decree - holder 'is obviously directory and not mandatory.'

19. Mr. Dhanuka also relied upon a judgment of a single Judge of the Madhya Pradesh High Court in Kishanlal v. Kothari Jothmal, : AIR1959MP115 . This judgment is not helpful to determine whether the provision about the deposit of 25 per cent is mandatory or is only directory. The only point which arose for consideration in that case was as to what was the point of time at which the sale in execution proceedings becomes legally effective and it was held that it becomes effective when the sale is confirmed that the sale becomes absolute and legally effective and that till then the sale does not become complete and legally effective.

20. The third case relied upon by Mr. Dhanuka was also a judgment of a Single Judge of the Andhra Pradesh High Court in Sivaray v. Lingareddi : AIR1966AP201 . Mr. Dhanuka's contention is that this judgment holds that a decree - holder who has been granted liberty to bid and set - off under the provisions of Rule 72 of Order 21, purchases the property, the order granting the set - off does not necessarily imply that he has been given liberty to set - off even against the deposit of 25 per cent, required to be made under Rule 84 of Order 21 and that there should be a specific order granting liberty to set - off for the amount of the deposit of 25 per cent.

21. In our opinion, out of these three judgments relied upon by Mr. Dhanuka it is only the said judgment of the Andhra Pradesh High Court which holds that the requirement of the deposit of 25 per cent is mandatory even in the case of the purchaser being a decree - holder and that unless there is a specific order to the contrary, he is bound to make that deposit of 25 per cent inspite of liberty to bid and set - off having been given to him in general words.

22. Mr. Thakkar, in his turn relied upon three judgments, one of the Rajasthan High Court and two of the Madras High Court to which we will presently refer.

23. The Rajasthan High Court judgment is a judgment of Wanchoo, C. J. who delivered the judgment on behalf of a Division Bench in Kanhaiyalal v. Sansmal AIR Raj 18. The judgment holds that reading Rules 72 and 84 of Order 21 together it is clear that where a decree - holder is permitted to bid at an auction, there is an implied dispensation also that he need not deposit 25 per cent of the purchase money unless the sale price is more than the decretal amount, that where the sale price is more than the decretal amounts, the decree - holder must deposit the excess up to 25 per cent of the purchase money, depending upon the excess of the sale price over the decretal amount and that there is no sense in insisting upon the decree - holder depositing 25 per cent of the purchase money, when the purchase money is less than or only equal to the decretal amount. This judgment takes a view contrary to that taken in the above Andhra Pradesh High Court judgment and holds that the requirement of the deposit of 25 per cent can be implied in the circumstances mentioned in the judgment even though the order for set - off is in general words and does not specifically refer to the requirement of the deposit of 25 per cent. The observations in this judgment requiring the deposit of 25 per cent to be made to the extent mentioned in the judgment when the sale price exceeds the amount of the decree held by the decree - holder purchaser, it should not go unnoticed have been made in the case of the holder of a simple money decree and not as mortgage decree in the case of a sale in execution of a simple money decree the complication of retable distribution can arise and would require consideration. The second point which would also have to be borne in mind is, firstly, that the sale in execution following an attachment may be made by a Court other than Court which passed the money decree and secondly that the money decree may or may not if the sale falls through be recoverable and is in that sense unsecured unlike as in the case of a mortgage decree where the count is, at least to the extent of the mortgage security, secured.

24. The second judgment relied upon by Mr. Thakkar was that of a Single Judge in Bhyraraju Ramaraju v. Lakshmiah : AIR1931Mad103 . The judgment holds that where the holder of a money decree who has been given permission to bid and set off is declared the purchaser, if the amount of his decree be equal to or less than the purchase price, he need not make the deposit of 25 per cent nor pay the balance, but that if the sale price exceeds the amount of his decree, he can be called upon to deposit the difference only at the time when he is called upon to pay the balance under Rule 85 of Order 21, unless, of course, his decretal amount is not sufficient to cover even the deposit of 25 per cent, in which case he must deposit the short - fall in his decretal amount as compared with the deposit of 25 per cent.

25. The third judgment relied upon by Mr. Thakkar was the judgment of a single Judge of the Madras High Court in Murugappa v. Ramasami AIR 1935 Mad 893. This judgment also is to the same effect as the other judgment of the Madras High Court in the above case of : AIR1931Mad103 .

26. The provisions of the relevant rules of Order 21 were relied upon by Mr. Dhanuka only by way of a help when construing the provisions of Rule 500 - A. We have already pointed out the difference between the two provisions and the cases where they can apply. None-the-less even the judgments relating to the relevant rules under Order 21 do not hold that the requirement as to the deposit of 25 per cent is mandatory. The judgment of the Supreme Court does not hold, nor do the said other judgments, except the said judgment of the Andhra Pradesh High Court. The judgments of the Rajasthan and Madras High Courts shows that permission granted to a decree - holder in general terms to bid and set - off can be construed, depending on the circumstances of the case by comparing the amount of the purchase price with the decretal amount due to the decree - holder purchaser, to include a right to set off even against the deposit of 25 per cent. And that for the latter purpose there need not necessarily be a specific order permitting set - off against the amount of the deposit of 25 per cent. The view taken by the Rajasthan and the Madras High Courts is, with respect to all the judgments referred to above, a view taken not merely on a construction of the relevant rules of Order 21 but based on commonsense. Needless to repeat that that view acquires greater strength when the sale is in pursuance of a decree absolute for sale in a mortgage suit and the decree - holder is the purchaser. We, therefore, hold that if the mortgagee decree - holder is declared the purchaser and he has been granted liberty to bid and set - off, then even though there be no specific order permitting the set - off against the amount of the deposit of 25 per cent required to be made under sub rule (i) of Rule 500 - A of the Original Side Rules, he is entitled to set - off the amount decreed in his favour by the mortgage decree, to the extent of that decretal amount first against the said deposit of 25 per cent and thereafter against the balance of his purchase price. We accordingly hold that in this case before us the first respondent was entitled to set - off its mortgage claim, which exceeded the amount of the deposit of 25 per cent provided for under sub - r. (i) of Rule 500 - A of the Original Side Rules, and that it was, therefore, not bound to make the said deposit of 25 per cent. We must, therefore, hold, which we do, that the sale is not an invalid sale , nor can it be set aside on the first ground urged by Mr. Dhanuka.

27. It should be noted that Mr. Thakkar had contended that even if the sale were to be held to be invalid or it were to be set aside on the ground that the first respondent was under an obligation to make the deposit of 25 per cent, but it failed to do so, the appellant had in the present case waived the said requirement of the deposit of 25 per cent. In view of the conclusion which we have reached, it is unnecessary for us to decide this contention of the first respondent about waiver.

28. We will no turn to the second contention urged by Mr. Dhanuka. He contended that under the requirement of sub - rule (ii) of Rule 500 - A the first respondent was bound to deposit an amount of the full balance of 75 per cent., without deducting therefrom the said sum of Rs. 75,000/- which the first respondent has in fact deducted for its costs as estimated by it. He contended that on this ground also the sale is an invalid sale and is in any event liable to be set aside.

29. Now the preliminary decree, in so far as it concerns the first respondent, declares that there was due to the 1st respondent at foot of the mortgage an aggregate sum of Rs. 11,44,617.75 for principal and interest as at the date of the decree and further compound interest at the rate of four and a half per cent per annum with yearly rests from the date of decree till the date fixed for redemption and thereafter at the rate of four and half per cent per annum till payment and 'the costs of the suit when taxed as between attorney and client and noted in the margin hereof' with simple interest on such costs at the rate of four per cent per annum 'from the date of the decree' till payment. It is clear that the costs awarded by the Preliminary Decree to the first respondent are the costs of the suit till the date of the Preliminary Decree. The Preliminary Decree is silent as to the first respondent's costs subsequent to the preliminary Decree. To that provision for costs the Decree Absolute for sale adds a sum of Rs. 220/- for costs, being the costs of obtaining the Decree Absolute for sale. The amount of Rs. 75,000/- which the first respondent retained with it when paying the amount of the balance of the purchase price, admittedly represented not only the costs covered by the Preliminary Decree and the Decree absolute for sale, but also the subsequent costs which related to the sale of the property, and according to Mr. Thakkar also the costs which the first respondent as mortgagee had to incur in respect of another suit, the costs whereof were ordered to be costs in the mortgage suit.

30. Now Mr. Dhanuka advanced five arguments in support of his said second contention. His first argument was that under the Preliminary Mortgage Decree, the costs of the suit become payable only when they are taxed and noted in the margin of that decree. His second argument was that neither of the two decrees on their wording entitled the first respondent to costs other than the costs of the suit up to the date of the preliminary decree and the said sum of Rs. 220/-. His third argument was that neither of the two decrees, nor even the Original Side Rules, provide for a set - off being made for the costs subsequent to the decree absolute for sale which have not been ordered to be paid. His fourth argument was that in any event there can be no set off in respect of estimated costs as the same are not an ascertained sum. His fifth argument was that no data whatever has been furnished by the first respondent to show how the first respondent estimated the costs in the sum of Rs. 75,000/- and that in any event the amount of Rs. 75,000/- is an exorbitant amount. He contended that the deduction of Rs. 75,000/- made the payment actually made an insufficient payment or tender and that the sale must therefore be held to be invalid or should be set aside.

31. Now as regards the first three of these five arguments of Mr. Dhanuka, Mr. Thakkar did not dispute that the costs of the suit have not been taxed or noted in the margin of the preliminary decree nor that neither the preliminary decree nor the decree absolute for sale provides for the first respondent's costs subsequent to the Decree Absolute for sale nor that neither the two decrees nor the Original Side Rules provide for a set - off for such subsequent costs. He contended that nonetheless the first respondent is entitled to estimate such subsequent costs and to set - off the same against the purchase price because of a practice of this court.

32. It is by the first respondent's Attorneys' said letter dated 30th September 1970 addressed to the Commissioner that the first respondent stated that it would retain the sum of Rs. 75,000/-. The Statement contained in that letter in this connection reads : -

'In addition to the aforesaid aggregate amount of Rs. 16,13,163.21 due to my clients for principal and interest further amount would also be due to them for costs. The above suit is of the year 1949 and since considerable costs have been incurred including the costs of so many as 18 auction sales of the mortgaged property held by you since 25th June 1951, the taxation of all such costs would take a long time. My clients roughly estimate these costs at Rupees 75,000/- and request you to allow them to add the said estimated costs to the aforesaid aggregate amount of Rupees 16,13,163.21 P. due to them for principal and interest so as to make their total dues for principal, interest and costs amounting to Rs. 16,88,163.21 P.'

Thereafter the first respondent filed with the Commissioner of this Court an affidavit dated 5th October 1970 of Bodhraj Dhanda, the Assistant Secretary of the first respondent, in paragraph 4 whereof the first respondent stated :-

'The plaintiffs corporation therefore hereby undertakes to pay the learned commissioner whatever balance found due and payable by them in respect of their costs in case the said costs are found less than Rs. 75,000/- on taxation by the Taxing Master of this Hon'ble Court.'

The said practice of this court relied upon by the first respondent has been averred in the affidavit in reply filed by the first respondent in the matter of the said Chamber Summons. It is stated in paragraph 6 thereof as under : -

'The estimated costs of the suit is not only the costs awarded under the decrees herein but is inclusive of the costs of so many as 18 auction sales of the mortgaged property already held by the Commissioner in reference for sale made to him under the Decree Absolute for sale. The suit is of the year 1949 and the plaintiffs have incurred considerable costs in conducting the suit for so many as 21 years and according to Court's practice all costs incurred after the Decree absolute for sale are awarded at the time of confirmation of sale and all such costs in case of the plaintiffs being declared purchasers are allowed by the Commissioner to be set - off and as it usually takes considerable time to have all such costs taxed the Commissioner always makes provision for costs by retaining certain sum out of the sale proceeds in his hands. On 6th October 1970 the plaintiffs sent to the Commissioner their cheque for Rs. 5,00,556.79 P. and not for Rs. 5,00,00,556.79 P. as incorrectly stated in the said para 4. As required by the Commissioner the plaintiffs have given an undertaking by affidavit to pay the balance in case the costs when taxed or settled are less than Rs. 75,000/-. In fact the matter was discussed informally at a meeting held at pass the accounts of the Receiver when V. G. Pittie who has made the affidavit in support of the Chamber Summons was present and when it was decided to follow the aforesaid procedure.'

The said affidavit in reply in its paragraph 7 further states as under : -

'The plaintiffs further submit that they are entitled to deduct the costs of the various auction sales which were about eighteen in number out of the purchase price in addition to the other costs awarded to them. Since taxing of all costs would take considerable time the plaintiffs have with the consent of the Commissioner for taxing accounts duly estimated their costs and paid the balance as aforesaid and reserved their right to claim from the said balance and excess amount in case the costs after taxation exceed the said sum of Rs. 75,000/- and have given an undertaking by an affidavit that in case the costs ultimately taxed are less than the said sum of Rs. 75,000/- then the plaintiffs would pay the difference. The plaintiffs submit that this is the only practical way of dealing with the matter.'

33. To this affidavit in reply the appellant filed an affidavit in rejoinder of V. G. Pittie dated 3rd November 1970. Paragraph 2 of that affidavit deals with paragraphs 3 to 7 of the said affidavit of Bodhraj Dhanda in reply. The contentions of that paragraph are an outstanding example of supreme vagueness. Its first sentence states that paragraphs 3 to 7 of the affidavit in reply are mainly argumentative and that the deponent had been advised not to aver to the arguments. It then says that those paragraphs also contain allegations of half truths made by the appellant with a view to cause prejudice. What statements are half truths has not been specified either expressly or even by implication. It then purports to point out that in the affidavit in reply it is stated that the property was knocked down after a period of 20 years but the first respondent had not stated that it was for the first time put up for sale only in 1965. Now the record of the commissioner shows that the auctions were held from time to time since as per books 1951 and innumerable infructuous sales were held before 1965 and this statement is therefore either made without due care or is a deliberate untruth. In paragraph 6 or any where else in the said affidavit not a word is said about the practice either confirming it or denying it or starting anything which is inconsistent with the same. The affidavit in rejoinder being what it is, it must therefore be held that the appellant has not at all denied and has a matter of fact deliberately avoided denying the existence of the practice as averred by the first respondent in the said affidavit in reply. The existence of a practice be it the practice of the office of the Commissioner or of the court, is a question of fact. It has been so averred in the affidavit in reply and it has not been denied either expressly or even by implication in the affidavit in rejoinder. We, therefore, hold as we must that the existence of the practice as averred in the affidavit in reply has been proved.

34. But apart from this practice being held established by reason of the assertion of the first respondent and want of denial by the appellant we are satisfied that there is something more to support the conclusion that such practice exists. On the Notice of Motion dated 26th December 1970 taken out by the appellant in this appeal, the first respondent filed an affidavit of Jamshed Phirozeshaw contractor dated 25th January 1971. To that affidavit has been annexed as Ex. No. 1 a copy of the Minutes of the Commissioner of a meeting dated 16th December 1970 held before him in relation to the sale which is the subject matter of the present appeal. The question before him was concerning the first respondent's retention of the said sum of Rs. 75,000/- and in that connection the commissioner observes in those minutes :

'It is true that what the plaintiff decree - holder is entitled to set - off is the costs of the suit as would be taxed thereafter and that today the said costs are not taxed. In all such cases, the practice followed by this office is to take a statement of account from the plaintiff decree - holder, who is also the auction purchaser showing the different amounts for principal and interest as well as the estimated costs due under the decree and allow such amount of estimated costs to be set - off. This procedure is followed for the reason that the taxing of costs takes a considerable time after the sale is knocked down. It is quite possible that such estimated costs as are sought to be deducted by the decree - holder may be more or less. In order to safeguard the interest of all concerned, an undertaking is taken from the decree - holder on affidavit stating that if the taxed costs turn out to be less than the estimated costs including in the statement of account filed by him, the difference shall be deposited by him after the costs are taxed. On the plaintiffs' letter dated 30th September 1970 I had directed the plaintiffs to give such an undertaking and such undertaking was given by the plaintiffs by affidavit of thier assistant Secretary of the Mortgage Department, dated 5th October 1970.'

35. The Commissioner of this Court is one of the highest officers of this Court. His statements are prima facie worthy of credit unless some flaw is pointed out. He must have referred to the practice from his own knowledge and what is of greater importance, from the records available in his office.

36. The practice negatives Mr. Dhanuka's arguments that the first respondent was not entitled to set off the costs subsequent to the Decree Absolute for sale and that no set - off could be allowed as the sum of Rs. 75,000/- was not an ascertained amount as no costs whether up to or after the preliminary Decree had been taxed.

37. Mr. Thakkar's contention was that by reason of the existence of such practice it must be deemed to have been incorporated in the Original Side Rules and in the Decree Absolute for Sale or that in any event the payment after deduction of Rs. 75,000/- cannot be held to be an insufficient payment or tender. The existence of such a practice supports this contention of Mr. Thakkar.

38. In connection with the question of practice, it must however, be considered whether the practice is or not repugnant to or inconsistent with any provisions of law. Under the general law, and particularly under the provisions of the Transfer of Property Act a mortgagee is entitled to all costs properly incurred by him for realising his security. Such a provision has as a matter of fact, been made in sub - rule (3) of Rule 5 and sub - rule (1) of Rule 4 of Order 34 of the Code of Civil Procedure under which the mortgagee is entitled to his costs charges and expenses subsequent to the Preliminary Decree. The provisions of Rules 10 and 13 of Order 34 are also to the same effect. The Original Side Rules and particularly Rule 1086 provide form No. 35 for a Preliminary Decree and Form No. 37 for a Decree Absolute for sale. Neither of these two Forms contain a provision about costs subsequent to the Preliminary Decree and the Decree Absolute for sale respectively. As the mortgagee is entitled to all the costs of realising his mortgage security, there ought to be some provision whereby the mortgagee can recover such subsequent costs. The actual order for costs subsequent to the Decree Absolute for Sale is normally made by this Court at the time when the Court makes the order confirming the sale by ordering all proper costs incurred after the date of the decree absolute for sale till and inclusive of the confirmation of sale to be tacked on to the mortgage claim and to be paid out of the net sale proceeds. But when the mortgagee decree - holder is given liberty to bid and set - off the question of set - off costs against the amount of the balance of 75 per cent, would rise prior to the time when the Court would consider the question of confirming the sale. It stands to reason and commonsense therefore that a practice as referred to by the first respondent and also by the Commissioner has come into existence in this High Court. Such a practice does not appear to be in any way repugnant to or inconsistent with any provision of law. The clear effect of the existence of such a practice would be to read it by way of a necessary implication into the provisions of R. 500 - A and into the decrees passed in the Forms prescribed by the Original Side Rules for drawing up Preliminary Mortgage Decrees and Decrees Absolute for sale, unless, of course, there is some order of the Court of the contrary. Moreover, the sales under Mortgage Decrees are conducted by the Commissioner of this Court. The mortgagee initially supplies the funds to the Commissioner to enable the Commissioner to incur the costs of such sale. As such costs are incurred by or through the commissioner, there arises no question of such costs being improper. There are therefore good chances for the mortgagee to ultimately recover the costs of sale out of the sale proceeds. Moreover, the Commissioner has experience as tow hat the costs, though not taxed would approximately amount to. If the mortgagee for any reason happens to over estimate his costs, the commissioner would in all normal cases be able to question the mortgage and if necessary ask for a split up and satisfy himself as to what the correct estimate should be such estimate would normally be discussed at a meeting before him where the attorney of the mortgagee and also of the mortgagor would be present. In view of this safeguard so available for checking the estimates of costs, the practice seems not only to be reasonable, but to be consonant with commonsense.

39. It had, however, been contended on behalf of the appellant that under sub - rule (ii) of R. 500 - A the time for payment of the balance of the purchase price is mandatory, because sub - rule (iv) provides that upon non - payment within the thirty days prescribed under sub - rule (ii) there should be an immediate re - sale. It was contended that the effect of the said practice would be to postpone the payment to the Commissioner of the amount of the estimated costs beyond the said period of thirty days and that the said practice would be inconsistent with the provisions of Rule 500 - A. We are of the opinion, however, that the effect of the practice is to determine the amount which is payable under sub - rule (ii) of R. 500 - A as and by way of the balance of purchase price and it is only that amount so determined which is payable within thirty days and to the non - payment whereof within that time the provision of re - sale under sub - rule (ii) applies would by reason of the practice be the balance of the purchase price as otherwise ascertained reduced by the estimated amount of costs. The said practice is, therefore not repugnant to any provision contained in sub - rule (ii) or sub - rule (iv) of R. 500 - A.

40. It was also contended on behalf of the appellant that the amount of Rs. 75,000/- as the estimated costs is exorbitant. Now the word 'exorbitant' is vague. This contention was not raised in the affidavit in support of the present Chamber Summons. It was, as a matter of fact, not raised even before the Commissioner. Mr. Thakkar stated that this point was not even argued before the learned Judge. This statement of Mr. Thakkar has not been contradicted on behalf of the appellant. It has certainly not been made a ground in the Memorandum of appeal. After all the correctness of the estimate is a question of fact. Mr. Thakkar stated that in the absence of a dispute raised by the appellant in this connection, the first respondent did not place on record the necessary material to support the estimate of Rs. 75,000/-. As an example, he pointed out, as stated earlier, that the first respondent's costs of defending a suit in this court as a Mortgagee have been made costs in the present suit out of which this appeal arises. Mr. Thakkar's grievance is justified because the appellant should have disputed the correctness of the amount of estimated costs before the commissioner or at least before the Learned Judge and as the appellant has not done so the point cannot be allowed to be argued for want of necessary material before the court. But we do not rest content only at that. We have made a rough estimate ourselves. As it is the mortgagee who has to furnish funds to the commissioner for the costs of the sale and the mortgagor has not at that stage to put his hand in his pocket for that purpose, the mortgagor always desires that the court should give widest publicity to the intended sale. Of course, if it was the mortgagor who had to foot the bill his tune would have been different. The mortgagor has always been a favoured litigant if one may use that phrase, of all courts, and quite rightly because a mortgagor being a debtor, needs protection against any improper tactics by his mortgagee. The Court therefore just to prevent any unfairness relating to the mortgagor leans a little in favour of the mortgagor's demand when the property is to be advertised for sale, and particularly when a large property like the one concerned in this appeal is to be sold. It is well known in Bombay that if an advertisement appears in a newspaper like the Times of India, the costs of advertisement themselves are comparatively much larger than what they would be if the advertisements were to be published in some other newspaper. The costs of infructuous sales thrown away, which should not be confused with the costs of the sale which are larger, used to be estimated and ordered by Chamber Judges at between Rupees 750/- to Rs. 1,000/- till about five or seven years ago. Because of diverse reasons these costs of sale thrown away are now being estimated at between Rs. 1,500/- to Rs. 2,500/- depending on diverse factors like the newspapers in which the advertisements are inserted etc. There has been a progressive increase in such costs. Cost of nineteen sales have to be estimated on that basis. Moreover it is common ground that because of the long period of 21 years having elapsed between the date of the Decree absolute for sale and the 19th sale, the Commissioner of this court had obtained Valuation Reports for fixing the reserve bids on two occasions and the Commissioner's records show that he has paid Rs. 6000/- to the valuer for each of the two Valuation Reports. In addition, the Commissioner himself must have spend additional amounts for divers purposes such as, for example, for getting the particulars and conditions of sale printed, etc. To these costs must be added the costs of the lawyers representing the first respondents at the various meetings held before the commissioner and for attending at the auction sale. All of such costs are being allowed in taxation to a mortgagee decree - holder according to the scales of fees prescribed for that purposes. To that must be added the first respondent's costs of the mortgage suit and the other suit of which costs have been made costs in the former suit. Taking into account all these costs which the first respondent as the mortgagee would be entitled to recover out of the mortgage security, i.e., the sale proceeds, we are prima facie satisfied, only on a rough estimate that the estimate of Rs. 75,000/- will if at all, exceed the actual taxed costs by hardly any appreciable amount. To use the word 'exorbitant' in this connection without even any material would in our opinion require re - writing of dictionaries relating to that word 'exorbitant'.

41. Mr. Thakkar had contended that if this court did not uphold the deduction of the said sum of Rs. 75,000/- for estimated costs, this Court should extend the time for making payment of the balance of the amount under sub - rule (ii) of R. 500 - A. He pointed out that the deduction was made on the basis of an estimate by placing bona fide reliance on the said practice and that if that practice is now not upheld by this Court for any reason, this case would be the first to so hold and that this court should because of that reason in this case extent the time of paying that amount of Rs. 75,000/- to the Commissioner. He contended that if at all it be necessary, this court might so extent the time even by imposing some conditions on the first respondent, such as payment of interest from the date when that payment should have been made to the Commissioner till such time as this court may extend for making such payment. The appellant countered this contention by saying that in view of the provisions of Rule 500 - A if the first respondent at all wanted to apply for extension of time, the first respondent itself should have taken out the necessary proceeding containing such a application, that the first respondent cannot do so in the matter of the present Chamber Summons which is taken out by the appellant for challenging the validity of the sale and that the first respondent has as a matter of fact, not made even in the matter of this chamber Summons any such application before the learned Judge and has in any event not placed any material before this court in support of its application for extension of time. Now sub - rule (ii) of Rule 500 - A contains the provision for extension of time. Rule 500 - A, on for the matter of that no rule in the Original Side Rules, contains a provision which would require that in all such cases for respondent who would be under an obligation to itself apply for extension of time. In other words, even in a proceeding taken out by the mortgagor, the mortgagee can if it is necessary, as and by way of defending against the relief asked for in that proceeding by the mortgagor request the court to extend the time. It is true that this point was not raised before the learned Judge, nor is there nay material contained in the affidavits filed on behalf of the first respondent in the matter of the said Chamber Summons. So far as the material is concerned however the only ground relied upon Mr. Thakkar is a bona fide reliance on the existence of the said practice. No other material having been relied upon, we do not see why if necessary Mr. Thakkar cannot make such an application. It is true that under R. 500 - A it is the Chamber Judge who can grant such extension of time. It was contended on behalf of the appellant that this contention not having been raised before the Chamber Judge and the Chamber Judge not having considered or made any order either way in that respect, the extension of time was not the is before the Chamber Judge and is certainly not the is in the matter of this appeal. It is, however, pertinent to note that the learned Chamber Judge dismissed the Chamber Summons and it was therefore not necessary for him to consider the question of extension of time. We are of the opinion that the discretion which Rule 500 - A vests in the Chamber Judge is also available to this Court when hearing an appeal against the order of the Chamber Judge. An appeal is a continuation of the suit as proceeding out of which the appeal arises. If it was necessary, we would have entertained this application of the first respondent and proceeded to consider whether such extension of time should be given to it or not. It was contended on behalf of the appellant that the provisions of sub - rules (i) and (ii) of R. 500 - A being mandatory time for making the payment of the balance of the purchase price cannot be extended after the expiry of the prescribed period of thirty days. This argument completely ignores the provision of Rule 310 of the Original Side Rules which reads as under :-

'The Court of a Judge shall have power to enlarge or abridge the time appointed by these rules, or fixed by any order for doing any act or taking any proceedings, upon such terms (if any) as the justice of the case may require, and any such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed.'

The power to extend time under R. 310 is very wide. The Rule does not proceed that time can be extended only before the expiry of the prescribed time. The only limitation is such as would exist when a Court exercise its judicial discretion. It is, however, unnecessary for us to extend time as requested on behalf of the first respondent, in view of the conclusion which we have reached.

42. We have earlier stated that the mortgagor is in a sense of favoured litigant with courts because he needs protection of the Court against any possible unfair advantage being taken against him by his mortgagee. The contentions raised on behalf of the mortgagor in this case however make us feel that it can not be a universal rule and there can be some cases where it is the mortgagee who needs protection against the mortgagor. This case appears to be one of such cases. The reason why the mortgagor wants to cause delay does not require super intelligence to find it out. The reason is that the decree of 1949 provides for payment of interest subsequent to passing of the decree absolute for sale only at the rate of four per cent per annum. The rates of interest have sine then been continuously rising even the Central and the State Governments are today borrowing at the rate of about 5-1/2 per cent per annum and under the Bombay Money-lenders Act the rate of interest payable on secured loans has been twice raised from 6 per cent per annum to 9 per cent per annum and from 9 per cent per annum to 12 per cent per annum.

43. The appellant has failed and we therefore dismiss the appeal with costs we see no reason why the costs should not follow his event. The Costs of the appeal of the first respondent and the third respondent to be tacked on to their respective mortgage claims.

44. The Notice of Motion is also dismissed with costs. The Costs to be costs in the appeal.

45. As Mr. Dhanuka states that the appellant wants to consider its position about the filing of an appeal to the Supreme Court, he applies that the confirmation of sale should not be ordered before the expiry of three weeks from today. In view of the application, we order that no order for confirmation of sale should be made before Monday the 29th March 1971. The appellant to expeditiously make an application, if any, for leave to appeal to the Supreme Court.

46. Appeal dismissed.


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