IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 23RD JANUARY 2008 / 3RD MAGHA 1929 WP(C).No. 36602 of 2007(G) -------------------------- OS.532/2001 of II ADDL.SUB COURT,THRISSUR .................... PETITIONER: ------------ BIJU V.J., S/O. JOSE, RESIDING AT VALIYAVEETTIL HOUSE, KACHERY, OLLUKKARA VILLAGE, THRISSUR TALUK. BY ADV. SRI.V.CHITAMBARESH (SR.) SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU RESPONDENTS: ------------- 1. THE STATE BANK OF INDIA, REPRESENTED BY ITS BRANCH MANAGER, KURIACHIRA, THRISSUR. 2. C.V.RAJAN, S/O. VELU, RESIDING AT CHEMBIL HOUSE, JANATHA ROAD, KURIACHIRA, THRISSUR. R1 BY SC SRI.P.V.SURENDRANATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO 36602/07 APPENDIX PETITIONER'S EXHIBITS: EXT.P1. COPY OF THE ORDER IN EA NO.811/07 IN EP NO.120/05 IN OS NO.532/01 ON THE FILE OF THE COURT OF THE SUBORDINATE JUDGE OF THRISSUR DT. 12.6.07. EXT.P2. COPY OF THE ORDER IN EA NO.845/07 IN EP NO.120/05 IN OS NO.532/01 ON THE FILE OF THE COURT OF THE SUBORDINATE JUDGE OF THRISSUR DT. 12.6.07. EXT.P3. COPY OF THE EA NO.1390/07 IN EP NO.120/05 IN OS NO.532/01 ON THE FILE OF THE COURT OF THE SUBORDINATE JUDGE OF THRISSUR DT. 25.10.07. /TRUE COPY/ PA TO JUDGE. M.N.KRISHNAN, J. -------------------------- W.P.(C). NO. 36602 OF 2007 --------------------- Dated this the 23rd day of January, 2008 JUDGMENT This writ petition is field seeking to set aside Ext.P3 order and directing the court below to consider EA 1390/07 in EP 120/05 in OS 532/01 in the light of the order XXI Rule 86 CPC. 2. The brief facts would reveal that the present writ petitioner is an auction purchaser in a court sale and had deposited an amount of 25% as per the Rules on the date of bid and thereafter failed to deposit the amount within the stipulated period of 15 days, which resulted in setting aside the sale and the order for reauction of the property. The court below also ordered forfeiture of the amount. After this, the judgment debtor had deposited the entire amount before the Bank and full satisfaction is recorded, as far as the decree debt is concerned. Now the only question that survives for determination is what is to be done with the 25% of the amount which is already deposited by the auction purchaser. 3. Under Order XXI Rule 86 the power is given to the court, if it thinks fit, to forfeit the said amount to the Government. Here, it is a case where much complication has not arisen on account of the non WPC NO 36602/07 2 deposit of balance consideration. There is also nothing to show that it was an intentionally willful default of non payment of the entire amount. But it was due to some financial constraints. Therefore it may not be proper in a case of this type to forfeit the entire amount to the Government when the party himself is hard pressed for money. But at the same time, his conduct has caused inconvenience to the decree holder as well as the judgment debtor and the court. For that, a nominal amount can be taken from him as forfeiture. 4. In this case, I feel that interest of justice can be met by forfeiting an amount of Rs.4,000/- out of Rs.84,000/- to the Government and the court below can reimburse the balance amount of Rs.80,000/- to the auction purchaser on appropriate application. To this extent, the order passed by the court below is modified and when an application for reimbursement of the amount comes before the court in the form of a cheque application, it shall be disposed of within a period of one month. The writ petition is disposed of accordingly. M.N.KRISHNAN, JUDGE vps WPC NO 36602/07 3