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. The first contention urged by Mr. Coltman on behalf of the purchaser is that Order XXI, Rule 89, does not apply to a sale by the Commissioner under a decree absolute for sale passed on the Original Side of this Court. In support of this contention it is pointed out that Sub-clause (b) of Sub-rule (I) of Rule 89 refers to the amount specified in the proclamation of sale. In the proclamation of sale issued by the Commissioner no amount is specified. All that is stated in this proclamation is :
It is proclaimed and notified that in pursuance of the decree absolute for sale the Commissioner will sell by public auction the immoveable properties.
It is true that strictly speaking the amount payable to the decree-holder is not specified in the proclamation, but the whole object of this Sub-clause is to enable the person bringing the money into Court to know exactly what is the amount he has to deposit for payment to the decree-holder. The amount can be easily ascertained as far as the proclamation issued by the Commissioner is concerned by referring to the decree absolute for sale which mentions the exact amount.
4. The same view was taken by Mr. Justice Pratt in Manajl Kuverji v. Aramita I.L.R. (1921) 46 Bom. 171. In that case the mortgagor paid into Court not the amount for the recovery of which the sale was ordered but only the amount realized by the sale. His excuse was that the proclamation of sale did not specify the amount to be recovered. Mr. Justice Pratt held that the proclamation did specify the amount inferentially for it referred to the decree.
5. 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.
6. In Kalyanee Debi v. Hari Mohan Ghosh I.L.R. (1928) Cal. 477, this point was specifically raised and considered by the Court of Appeal consisting of Rankin C.J. and C.C, Ghose J. It was argued in that case, as it was argued before me by Mr. Coltman, that as the amount was not specified in the proclamation of sale, Order XXI, Rule 89, did not apply to sales on the Original Side. The Court of Appeal held that the Court must apply those' words as fairly as possible to the circumstances of the sale on the Original Side.
7. The next question is whether there is anything in our High Court Rules which abrogates Order XXI, Rule 89. My attention has been drawn to Rule 491 of the High Court Rules which provides that when a sale of immoveable property is set aside, the purchaser, unless precluded by the conditions of sale, or unless otherwise ordered, shall be entitled to receive back his deposit or purchase-money, and to be paid his costs, charges and expenses occasioned by his bidding for and being declared the purchaser of the property, and of and incidental to his application to be discharged. It is argued that Order XXI. Rule 89, does not make any provision for the costs, charges and expenses of the purchaser and, therefore, this particular provision of Rule 491 of the High Court Rules cannot be given effect to, if it was held that Order XXI, Rule 89, applied on the Original Side. In this particular case under the particulars and conditions of sale it is provided that the purchaser shall not be entitled to be paid any of his costs, charges and expenses and, therefore, really the question does not arise. But even assuming that in any particular case the purchaser was entitled to his costs, charges and expenses, the liability of the person making the application under Order XXI, Rule 89, to pay those costs would be independent of that particular rule. That rule is not intended to relieve the judgment-debtor from any liability he may have to the purchaser other than the one mentioned in that rule. This is a liability created by Rule 491 of the High Court Rules and it would be enforced by the Court independently of the provisions of Order XXI, Rule 89.
8. It is finally argued by Mr. Coltman that in this case I should not exercise my discretion in favour of the applicant because no case has been made out for the exercise of my discretion. I do not think that the order is at all discretionary. If the applicant complies with the provision? of Order XXI, Rule 89, he is entitled to have the sale set aside under Order XXI, Rule 92, as a matter of course. As pointed out by Sir Norman Macleod in Manaji Kuverji v. Aramita, the provisions of Rule 89 are a concession allowed to judgment-debtors, and they must be strictly complied with in order to enable the judgment-debtor to obtain the advantage of the concession. But if the judgment-debtor does comply with the provisions of that rule, as he has done in this case the Court has no option but to set aside the sale. The same opinion was given expression to by Mr. Justice Shah in Narayan v. Amgauda I.L.R. (1920) 45 Bom. 1094. In delivering his judgment, Shah J. says (p. 1104) :-
When an application to set aside the sale is made under that Rule and the amount required by the Rule is deposited, it is obligatory upon the Court to set aside the sale as provided by Rule 92, Sub-rule (2).
The same view has been taken by a full bench of the Madras High Court reported in Krishna Ayyor v. Arunachalam Chettiar I.L.R. (1935) 58 Mad. 972
9. I, therefore, hold that Order XXI, Rule 89, applies to sales on the Original Side, and that if the conditions mentioned in that rule are complied with by the applicant, the Court is bound to set aside the sale under Order XXI, Rule 92.
10. I will, therefore, make the summons absolute in terms of prayer (a). As this order is in the nature of a concession to the judgment-debtor, I must order the applicant to pay the costs of the summons. Counsel certified.