1. Section 129, Civil P.C. provides that
notwithstanding anything in this Code, any-High Court established under the Indian High Courts Act, 1861, or the Government of India Act 1915, may make such rules not inconsistent with the Letters Patent establishing it to regulate its own procedure in the exercise of its original civil jurisdiction as it shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.
2. The object of this section was to provide for elasticity in procedure and to enable defects in the Code to be remedied without the dilatory process of legislation, and the High Court was given power to vary or amend the rules of procedure which appear in the Code; see notes on p. 487, Woodroff on Civil Procedure,' Edn. 2.
3. For this reason the sections dealing -with procedure were taken out of the body of the Code and placed in a separate schedule. Therefore, if the matter were res integra I am doubtful whether I should decide that Order 21, Rule 89, applies to the High Court, because it is incompatible and inconsistent with the rules of the High Court on the original side. But it was decided in 1920 by Mukerjee, A.C.J., and Fletcher, J., in Virjiban Das Moolji v Biseswar Lal Hargovind A.I.R. 1921 Cal. 169, that the rule does apply, and further they went on to say that the practice on the original side was contrary to law. I must confess that it as difficult to see how the rules of the High Court can be held to be contrary to law in view of Section 129. It should be observed that there is nothing in the 'Code to say that those rules must not be inconsistent with the code. What they must not be is inconsistent with the Letters Patent establishing the Court. However this case has been followed - consistently and it is not for me to disagree with it the question must await final solution hereafter. The difficulty in applying Order 21, Rule 89 to sales on the original side was recognized by Rankin, C.J. in Kalyanee Debi v. Sari Mohan Ghose : AIR1929Cal574 . In that case the learned Chief Justice said that, as the rule is a concession to the judgment-debtor, it ought to be applied strictly and where owing to the difference between our original side practice and the mofussil practice, which is contemplated in the rule, it is impossible to apply the rule strictly, the Court must apply it as fairly as possible to the circumstances of a sale on the original side. It was said by Francis Maclean, C.J., in Chundi Charan Mandal v. Banke Behary Lal Mandal (1899) 25 Cal. 449 that the rule affords a special indulgence to the judgment-debtor and that the 5 per cent was given partly as a solatium to the purchaser for the loss of his bargain. In many cases, if the 5 per cent is all that the purchaser is entitled to it would mean that he would not get anything for the loss of his bargain and might be actually out of pocket on account of loss of interest on his money and for costs incurred.
4. It cannot have been intended to give the judgment-debtor a special indulgence at the expense of an innocent third party. I am of opinion, therefore that that the purchaser in addition to the 5 per cent is entitled to be paid by the judgment-debtor any loss of interest and costs which he may have incurred. This conclusion in my opinion is indicated by Order 21, Rule 89(3) and Order 21, Rule 93.