1. This appeal arises out of a suit for declaration of title to certain lands and for recovery of possession of the same. The material facts briefly are as follows: The plaintiff in the suit and defendant 1 jointly obtained a decree for rent against one Khatun Bibi in the presence of other pro forma defendants in the year 1931. Defendant 1 was found entitled to Rs. 8 odd and the plaintiff to Rs. 15 in that decree. In the year 1933 defendant 1 took out execution of that decree, had the property of the judgment-debtor put to sale and purchased it on 27th November 1933. At the time of the sale, defendant 1 applied to set off his decretal amount against the purchase money. This was allowed. Thereafter apparently through over-sight, the balance of the purchase money was not deposited by defendant 1. But in spite of his failure, the sale was confirmed. The bid made by defendant 1 at which the sale was confirmed was for Rs. 35-8-6 and his claim under the decree was only about Rs. 16. Defendant 1 appears to have taken possession after his purchase. In the following year, the plaintiff took out execution proceedings of the same decree, had the property put to sale and on 10th July 1934, purchased the property. Thereafter the plaintiff instituted the present suit for declaration of his title to the lands and for recovery of possession and for mesne profits asserting that he had been dispossessed by defendant 1 in the year 1935. Both the Courts below decreed the plaintiff's suit. In the original Court it was held that the decree was a rent decree and that the sale at which the plaintiff purchased had the effect of a rent sale, whereas the sale at which defendant 1 purchased had the effect only of a money sale. In the lower appellate Court it was found that the decree itself had the effect only of a money decree and that both sales in execution had the effect of money sales. The lower appellate Court held that defendant 1 having failed to deposit the balance of the purchase money, her purchase in 1933 was a nullity and therefore the plaintiff was entitled to succeed. Against that decision, defendant 1 has appealed.
2. On behalf of the appellant it has been pointed out that this question was not considered in the Court of first instance and it has been argued that the lower appellate Court ought not to have decreed the plaintiff's suit on this ground. It is true that there is no discussion on this point in the judgment of the learned Munsif; but it appears in para. 4 of the plaint that the case was clearly made out therein that defendant 1 had failed to deposit the balance of the purchase money. There is no denial of the assertion in the written statement and the facts necessary to be established before this question can be decided must be therefore taken to be admitted facts. Such being the case, the lower appellate Court was justified in considering this question and giving a decision thereon even though the question had not been agitated in the Court of first instance. It has been argued that under the amended Rule 86 of Order 21, the Court may, if it thinks fit, refrain from forfeiting the deposit made under Rule 85 and that therefore the effect of the failure to deposit the balance of the purchase money is that the sale is not a nullity and that the property is a security for payment of the balance of the purchase money. The only case on this point to which my attention has been drawn is the case in Md Ali Mia v. Kibria Khatun ('11) 15 CWN 350, where it was held under the Code of 1882 that where the balance of the purchase money is not paid, the sale is a nullity and not merely an irregular sale for which remedy may be had by an application under Section 244 or Section 311 of that Code.
3. The learned advocate for the appellants has contended that under the old Code, the Court had no option and was bound to forfeit the deposit made under S.306 of the Code and that consequently when default was made for payment of the balance, it must be taken that in law no payment whatever had been made for the property and that consequently the sale was a nullity. It is true that Rule 86 has been amended and the words ' the deposit . . . shall be forfeited to Government' have been replaced by the words 'the deposit may, if the Court thinks fit. ... be forfeited to the Government.' But the concluding words of the rule have remained unaltered and that part lays down that the defaulting purchaser shall forfeit all claim to the property. It follows that whether the deposit made under Rule 85 be forfeited or not, the purchaser shall forfeit all claim to the property if he makes default of payment of the balance of the purchase money. In my opinion, the amendment of the rule does not make any alteration in the law regarding the effect of the failure to deposit the balance of the purchase money and the decision in Md Ali Mia v. Kibria Khatun ('11) 15 CWN 350 referred to above must be taken to be still good law. Following that decision I hold that the lower appellate Court was right in holding that the sale at which defendant 1 purchased was a nullity and consequently he was right in decreeing the plaintiff's suit as he did. The appeal accordingly fails and must be dismissed with costs payable to plaintiff-respondent 1.