1. Certain properties concerned in a partition suit O. S. No. 210 of 1949 on the file of the Subordinate Judge of Salem were directed to he sold so that the proceeds thereof could be distributed in adjustment of the shares of the parties entitled to partition. Apparently these properties were not capable of division in any other manner. The sale was accordingly held on 9th October 1959 and the successful auction purchaser was a third party; the properties were knocked down in his favour for Rs. 16000. As required by Order 21, Rule 84, the auction purchaser deposited 25 per cent, of the amount of the purchase money. Rule 85 requires further that the full amount of the purchase money has to he deposited before the court closes on the fifteenth day from the date of sale of the property. Such a deposit was not made. An application was put in by the auction purchaser on 21-10-1959 seeking for extension of time by one month from making the deposit of the balance. Though this application was opposed, the learned Subordinate Judge granted the time prayed for. The matter comes up in revision challenging the validity of the order made by the lower court.
2. It seems to me that Order 21, Rule 86 is quite clear on the point. It states that in default of payment within the period mentioned in Order 21, Rule 85, the court may, if it thinks fit, forfeit the deposit less the expenses of sale, to the Government, and the rule proceeds to lay down that the property shall thereafter be re-sold and the defaulting purchaser shall forfeit all claim to the property or to any part of the sum for which it may subsequently be sold.
This rule does not authorise the court to grant any extension of time for the payment of the balance of the purchase price. The only discretion that is available to the Court under this rule relates to the extent to which it is called upon to deal with the 25 per cent of the purchase price which had been deposited under Rule 84. In so far as that is concerned, the court may order its forfeiture after deducting the expenses of the sale.
If it does not do so, obviously that amount would normally be held to the credit of the auction purchaser to be returned to him. But the court is not competent to extend the time for payment of the balance of the amount for which time has been fixed by Rule 83. There is ample authority for this position in Monni Aidruz v. Mira Mohideen, AIR 1939 Mad 57, in which an earlier decision of the Allahabad High Court in Nawal Kishore v. Buttumal, AIR 1935 All 243 has been relied upon and approved.
3. On behalf of the respondents Section 148 of the Civil Procedure Code has been sought to be invoked in support of the lawful exercise of the powers of the learned Subordinate Judge in granting extension of time. The section in terms does not apply, It relates to a case where a period is fixed or granted by the court in its discretion for the doing of an act which is prescribed or allowed by the Code. In such an event, the court's discretion in enlarging the period is not fettered. But here is a case where the period is not fixed or granted by the court but is fixed by the Code itself. It makes a fundamental difference to the application of Section 148. This provision of law will not apply to the present case.
4. The petition is accordingly allowed. There will however be no order as to costs.