G.C. Das, J.
1. This is a petition on behalf of the auction purchaser against the order of the Munsif of Anandapur, rejecting his petition for the refund of the balance of the earnest money which was deposited by him on the date of the sale. The facts are: the Judgment debtor, opposite party No, 2's properties were sold at Court auction on 21-11-55 or Rs. 1000/- at the instance of the decree-holder, who is opposite party No. 1 in this application. The auction-purchaser petitioner deposited 25 per cent of the sale-money as the earnest money on that very day as required under Order 21, Rule 84, C. P. C. The executing Court allowed him time to deposit the balance of the sale money by 7-12-55 under' Order 21, Rule 85. On 7-12-55, the auction purchaser came with the money and tendered it with a challan at 10-30 a.m.
According to the auction-purchaser, the challan was passed by the Munsif rather late at about 3-30 P. M. on that day. The result was that he could not deposit the amount in the treasury, because the treasury would not receive any deposit after 3 p.m. On the following day, that is, on 8-12-58, at the time of the first hearing, the petitioner appeared before the learned Minsif and showed, cause as to why he was not in a position to deposit the money the previous day. The learned Munsif held that he had no power to extend the time and accordingly set aside the sale, and directed forfeiture of the earnest money to the State Government after defraying the expenses of the sale. The petitioner, thereafter, filed an application on 16-12-55 for a refund of Rs. 250/. which was deposited by him after deducting the expenses of the sale which the learned Munsif had rejected by his order of even date.
2. Mr. G. K. Misra, on behalf of the petitioner. contended that the learned Munsif had acted illegally and with material irregularity in the exercise of his jurisdiction in refusing to re-fund the amount deposited by the petitioner.
I think there is some force in the argument of Mr. Misra. Order 21, Rule 84 provides that on every sale of immovable property the person declared to be the purchaser shall pay immediately after such declaration a deposit of twenty five per cent on the amount of his purchase-money to the officer or other person conducting the sale, and n default of such deposit, the property shall forthwith be resold. Rule 85 thereafter, prescribes a period of fifteen days from the date of sale within which time the balance of the sale-money is to be deposited. Then comes the relevant Rule 86 which prescribes that in default of payment of the sale-money within the period prescribed under Rule 85, the Court may, if it thinks fit order the forfeiture of the deposit, after defraying the expenses of the sate, to the Government and the property in question shall be resold.
In the old Code, in Rule 86 the words employed were 'shall be forfeited' but the word 'shall' has now been substituted by the words 'may, if the Court thinks fit.' therefore, instead of the mandatory provision, it is now a diseretion with the executing Court. The executing Court, therefore, after taking the circumstances into consideration is left to exercise his judicial discretion Mr. Misra relied upon, a decision of the Patna High Court reported in Bijoy Singh v. Kirtyan and Singh, AIR 1932 Pat 342 (A) where James J. relying upon two earlier decisions of the Calcutta and Madras High Court reported in Gujadhur Pauree v. Naik Pauree ILR 8 Cal 528 (B) and Srinivasa Bhatta v. Malayacha Mannadi, ILR 7 Mad 211 (C) held that where the auction-purchaser sufficiently complied with Rule 85 of Order 21 when he came to the Court at the opening hour of the 15th day with the money, prepared to make his deposit, and diligently took the steps required by the Departmental Rules, he cannot be held responsible for the obstruction which was caused by the delay in passing the challan and the Court holding that the sale must be set aside as the money was not paid in time, acts illegally and with material irregularity in the exercise of its jurisdiction.
In this case, the auction-purchaser was ready with the money according to his affidavit, on 7-13-55 at 10-30 a.m. and presented the challan to be passed by the learned Munsif on that morning.
But unfortunately the challans were passed late,either due to the latches of the chief ministerialofficer of the Court or of the Munsif, at 3-30 P.M., when under the rules of the treasury, themoney could not be deposited on that behalf. Thepetitioner, no doubt, has not come up to thisCourt with a prayer for setting aside the sale onthat ground. All that was prayed for in the Courtbelow as well as in this Court is that he is entitledto the refund of Rs. 250/- deducting the expensesfor sale therefrom. I think in the circumstances of this case, the learned Munsif has acted illegally and with material irregularity in the exerciseof his jurisdiction. I would therefore, set asidehis order and direct that the auction purchaser isentitled to a refund of the sum of Rs. 250/- afterdefraying the expenses of the sale. Accordingly,the rule is made absolute, but since there is noappearance on behalf of the opposite-party, therewould be no order for costs.