Principles

·  CIVIL PROCEDURE_Excution sale_Forfeiture of down payment upon failure to pay balance—Reason for failure—Civil  Justice Ordinance 1929, Order XV, r. 40.

·  LA ND LA W — Execution sale — Forfeiture of down payment — Civil Justice Ordinance 1929, Order XV, r. 40.

Forfeiture of the down payment in an execution sale of land under Civil Justice Ordinance, Order XV, r. 40 will not be upset where the purchaser’s conduct showed that his failure to pay the balance within the statutory period was due to a change of mind about the purchase.

Forfeiture of the down payment in an execution sale of land under Civil Justice Ordinance, Order XV, r. 40 will not be upset where the purchaser’s conduct showed that his failure to pay the balance within the statutory period was due to a change of mind about the purchase.

Judgment

Advocate: Shawgi Hassaballa Mallasi …………….for applicant

Babiker Awadalla, J., November 27, 1961 :— This is an application for revision against the order of the Honourable Judge of the High Court, Khartoum, dismissing summarily an application to him against the order of the learned District Judge, Khartoum. forfeiting a sum of £S. 170 paid by applicant in an execution sale under Civil Justice Ordinance, Order XV, r. 39.

The sale was conducted on July 10, 1961, and the property. Plot No.34, Block 9 G.W., was knocked down to applicant for a sum of £S.850, of which applicant paid £S. 170, twenty per cent of the price. Under Rule 39, the balance had to be paid Within fifteen days from date of sale, but applicant failed so to pay, and on August 12, 1961 the Court cancelled the sale and ordered the said sum of £S. 170 to be forfeited to the Government under Order XV., r. 40.

it is now contended on behalf of applicant that he was ignorant of Order XV, r. 39 and was under the impression that he could pay the balance

• Court: MA. Abu Rannat. C.J and B. Awadalla, J.

at any time before the sale was made absolute under the rule 46 at first  I was inclined to believe this story, especially because the learned District Judge himself appended the words “until approval” to his order for collection of the deposit. The learned advocate for applicant appeared before us and stated that applicant was no longer interested in the property. and wanted to withdraw his money. To my mind, therefore. applicant’s failure to pay the balance might have been the outcome of a second thought about the deal, rather than due to a misconception of the law as applicant was hitherto contending. If applicant were inclined to honour his word and complete the sale, this Court would certainly have helped him to any extent. but it would certainly be wrong and improper to interfere with the order of forfeiture in the circumstances. A lot of expense may have to be incurred before this property can be sold again. There has already been one attempt to sel applicant’s default, which proved abortive. and no doubt the expense for this sale, as well as any future one, has to be met out of the sum now forfeited. I see nothing in the conduct of applicant to justify the payment of any balance to him.

The order for forfeiture was therefore correct, and this application is hereby dismissed.

MA. Abu Rannat, C.J., November 27. 1961 :— I concur.