R.F. Lodge, J.

1. This appeal arises out of a suit for declaration of titleto certain lands and for recovery of possession of the same. The material factsbriefly are as follows: The plaintiff in the suit and defendant 1 jointlyobtained a decree for rent against one Khatun Bibi in the presence of other proforma defendants in the year 1931. Defendant 1 was found entitled to Rs. 8 oddand the plaintiff to Rs. 15 in that decree. In the year 1933 defendant 1 tookout execution of that decree, had the property of the judgment-debtor put tosale and purchased it on 27th November 1933. At the time of the sale, defendant1 applied to set off his decretal amount against the purchase money. This wasallowed. Thereafter apparently through over-sight, the balance of the purchasemoney was not deposited by defendant 1. But in spite of his failure, the salewas confirmed. The bid made by defendant 1 at which the sale was confirmed wasfor Rs. 35-8-6 and his claim under the decree was only about Rs. 16. Defendant1 appears to have taken possession after his purchase. In the following year,the plaintiff took out execution proceedings of the same decree, had theproperty put to sale and on 10th July 1934, purchased the property. Thereafterthe plaintiff instituted the present suit for declaration of his title to thelands and for recovery of possession and for mesne profits asserting that hehad been dispossessed by defendant 1 in the year 1935. Both the Courts belowdecreed the plaintiffs suit. In the original Court it was held that the decreewas a rent decree and that the sale at which the plaintiff purchased had theeffect of a rent sale, whereas the sale at which defendant 1 purchased had theeffect only of a money sale. In the lower appellate Court it was found that thedecree itself had the effect only of a money decree and that both sales inexecution had the effect of money sales. The lower appellate Court held thatdefendant 1 having failed to deposit the balance of the purchase money, herpurchase in 1933 was a nullity and therefore the plaintiff was entitled tosucceed. Against that decision, defendant 1 has appealed.

2. On behalf of the appellant it has been pointed out thatthis question was not considered in the Court of first instance and it has beenargued that the lower appellate Court ought not to have decreed the plaintiffssuit on this ground. It is true that there is no discussion on this point inthe judgment of the learned Munsif; but it appears in para. 4 of the plaintthat the case was clearly made out therein that defendant 1 had failed todeposit the balance of the purchase money. There is no denial of the assertionin the written statement and the facts necessary to be established before thisquestion can be decided must be therefore taken to be admitted facts. Suchbeing the case, the lower appellate Court was justified in considering thisquestion and giving a decision thereon even though the question had not beenagitated in the Court of first instance. It has been argued that under theamended Rule 86 of Order 21, the Court may, if it thinks fit, refrain fromforfeiting the deposit made under Rule 85 and that therefore the effect of thefailure to deposit the balance of the purchase money is that the sale is not anullity and that the property is a security for payment of the balance of thepurchase money. The only case on this point to which my attention has beendrawn is the case in Md Ali Mia v. Kibria Khatun (11) : 15CWN 350, where it was held under the Code of 1882 that where the balance of thepurchase money is not paid, the sale is a nullity and not merely an irregularsale for which remedy may be had by an application under Section 244 or Section311 of that Code.

3. The learned advocate for the appellants has contendedthat under the old Code, the Court had no option and was bound to forfeit thedeposit made under S.306 of the Code and that consequently when default wasmade for payment of the balance, it must be taken that in law no paymentwhatever had been made for the property and that consequently the sale was anullity. It is true that Rule 86 has been amended and the words " thedeposit . . . shall be forfeited to Government" have been replaced by thewords "the deposit may, if the Court thinks fit. ... be forfeited to theGovernment." But the concluding words of the rule have remained unalteredand that part lays down that the defaulting purchaser shall forfeit all claimto the property. It follows that whether the deposit made under Rule 85 beforfeited or not, the purchaser shall forfeit all claim to the property if hemakes 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 theeffect of the failure to deposit the balance of the purchase money and thedecision in Md Ali Mia v. Kibria Khatun (11) : 15 CWN 350referred to above must be taken to be still good law. Following that decision Ihold that the lower appellate Court was right in holding that the sale at whichdefendant 1 purchased was a nullity and consequently he was right in decreeingthe plaintiffs suit as he did. The appeal accordingly fails and must bedismissed with costs payable to plaintiff-respondent 1.

.

Annapurna Dasi vs.Bazley Karim Fazley Moula and Ors.(19.08.1940 - CALHC)