Mayava Mudaliar vs Varadaraja Mudaliar and another

Ramaprasada Rao, J.—The third party auction purchaser is the petitioner. On 10th October, 1966 the property which is the subject-matter

of this suit was sold in execution. The auction purchaser deposited the 25 per cent as required under the rules. But before the statutory period

provided for the deposit of the balance and on 25th October, 1966, he filed a lodgment schedule for the issue of a chalan for making the deposit

as required under Rr. 157 and 158 of the Civil Rules of Practice. On 26th October, 1966 the chalan was issued after the bank hours. The auction

purchaser, therefore, was obliged to apply to Court to direct an officer of Court to receive the balance of the bid amount. This was by a Memo

filed by the auction purchaser on 26th October, 1966. The learned Subordinate Judge of Vellore, rejected the petition as the money ought to have

been paid in Court and deposited in the treasury within fifteen days of the date of sale and as it was sought to be deposited on the sixteenth day, he

rejected the application. As against this, the present civil revision petition is filed. It is no doubt true that the auction purchaser who is guilty of

laches on his part to deposit the auction money as per the mandatory provisions of O. 21, Rr. 84, 85 and 86, C.P. Code cannot have any relief at

all, as such payment within the time prescribed is a condition precedent for the sale in his favour being kept alive and as otherwise the sale would

be deemed to have been wiped out. This is the view expressed by the Supreme Court in Manilal Mohanlal Shah and Others Vs. Sardar Sayed

Ahmed Sayed Mahamad and Another, To this decision cited before me by the learned Counsel for the respondents learned Counsel for the

petitioner has no answer. But his contention, however, is that he did take steps with all promptitude as required under Rr. 157 and 158 of the Civil

Rules of Practice read with O. 21, R. 85 (Madras Amendment) C.P. Code ; but the Court delayed the issue of the chalan and he was therefore

prevented by an act of Court from depositing the amount in time and there being no latch on his part, the Court ought to have directed the receipt

of the amount even though it was tendered a day later than the prescribed date. This argument has considerable force. No doubt, the provisions of

O. 21, Rr. 84, 85 and 86 C.P.C., are mandatory and even so Rr. 157 and 158 of the Civil Rules of Practice. Under the rules no deposit can be

made without a chalan. The chalan is issued only by the Court. If, therefore, the chalan, though applied for in time, is sot issued by the Court in time

so as to enable the depositor to pay the amount in the bank as required, then such a deposit should be deemed to have been not made by the

auction purchaser in time for any fault of his. An act of Court shall not prejudice any one. This maxim is founded upon justice and good sense and

affords a safe and certain guide for the administration of the law. Where, therefore, a litigant is unable to satisfy the mandatory provisions of

procedural law for no fault of his, but certainly on account of the erroneous act of Court, then it cannot be said that he is responsible for the delay

and that he should suffer the consequences. The following observations of Chandra Reddy, C.J. and Narasimham, J. in Raghavalu v. Venkamma

AIR 1962 AP 334 clearly apply to the facts of this case:

If the Court does not issue the chalan in spite of the application for it by the party before the expiry of the prescribed period, he is not in a position

to fulfil the obligations cast by R. 85. So, the non-observance of the terms of R. 85 is not due to any default or negligence on his part, but due to

causes beyond his control. It is inaction or the erroneous act of the Court that it is responsible for the inability of the party to deposit the money into

Court. It is in such a situation that the maxim actus curiae neminem gravabit i.e., an act of the Court prejudices no man comes into play. When a

litigant is unable to comply with the requirements of a statute not because of his own fault but on account of the action or inaction of a Court, the

principle underlying the maxim is attracted.

I am therefore satisfied that the delay in this case is not due to any act of commission or omission on the part of the auction purchaser, but it is due

to an error on the part of the Court. This has not been considered by the lower Court at all. The Memo filed by the petitioner requesting that the

money tendered by him may be received in Court as per the chalan issued to him by the office, though delayed by a day, is well founded. I

therefore allow the civil revision petition. The civil revision petition is allowed, but there will be no order as to costs.