Arumugham vs Subba Gounder And Anr. on 21 September, 1998

Madras High Court
Arumugham vs Subba Gounder And Anr. on 21 September, 1998
Equivalent citations: (1999) 1 MLJ 368
Author: P Dinakaran


P.D. Dinakaran, J.

1. The above revision is directed against the order dated 9.4.1985 made in E.A.No. 1779 of 1984 in E.P.No. 253 of 1982 in O.S.No. 693 of 1979 on the file of the learned District Munsif, Tindivanam dismissing the application filed by the revision petitioner under Sections 163 and 175 of Civil Rules of Practice, praying for issue of a cheque for a sum of Rs. 2705.40 in favour of the revision petitioner as the court auction sale has been set aside for his non-payment of sales certificate fees in time, as required under Order 21, Rule 86, C.P.C, which reads as follows:

Procedure default of payment: In default of payment within the period mentioned in the last preceding rule, the deposit may, if the court thinks fit, after defraying the expenses of the sale, be forfeited to the Government, and the property shall be resold, 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.

Hence, the above revision.

2. A reading of the above Order 21, Rule 86, C.P.C. makes it clear that the court is conferred with only discretionary power to forfeit the deposited amount only if the court thinks fit. Therefore, has implied that the court is under an obligation to decide, white exercising such discretionary power whether the reason for non-payment of the sale certificate fees is justified or otherwise.

3. The learned Counsel for the revision petitioner points out the ground that the revision petitioner could not pay the sales certificate fees in time as his mother died and therefore the court ought to have exercised the discretion only after considering the reason for such non-payment before forfeiting the deposited amount.

4. In the decision in In re Ponnambalam Mudali A.I.R. 1938 Mad. 405, this Court has held as follows:

It is not the whole of purchase money but only the initial deposit of 25 per cent that can be forfeited. As for the initial deposit the court has discretion to order its forfeiture if the party had not deposited the cost of the general stamp to be affixed to the sale certificate. But having regard to the fact that the clerk of the court who issued the challen should have drawn the party’s attention to the new rule arid asked him to pay the small sum necessary to defray the cost of the stamp, the court should not order forfeiture of the initial deposit.

5. As already pointed out, in the instant case, I am satisfied that the execution court has erroneously exercised its discretion conferred on it under Order 21, Rule 86, C.P.C., while dismissing the application for refund of money for not appreciating the reason explained by the revision petitioner for the non-payment of sales certificate fees in time and therefore the forfeiture of Rs. 2705.40 as ordered by the court is illegal and erroneous. Hence, I am obliged to set aside the order dated 9.4.1985, made in E.A.No. 1779 of 1984 in E.P.No. 253 of 1982 in O.S.No. 693 of 1979 and direct the execution court to refund the payment of Rs. 2,705,40 by issuing a cheque in favour of the revision petitioner, within two months from the date of receipt of a copy of this order.

6. In the result, revision is allowed No costs.

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