The absence of a legal provision allowing the magistrate to forfeit earnest money on non-payment of the balance led to the setting aside of the order of forfeiture.

K.Sahai, J.

1. An auction was held for settlement of disputed lands attached under Section 149(4) of the Code of Criminal Procedure. The highest bid of Rs. 5,000.00 was that of the petitioner and it was accepted. The petitioner deposited a sum of Rs. 1,250.00 as earnest money. Thereafter he defaulted in payment of the balance and he also represented that other persons were in possession of parts of the disputed land and that the lands settled with him be demarcated. The magistrate. by his order dated the 5th March, 1959, ordered that the earnest money deposited by the petitioner be forfeited and he further ordered that he should not be allowed to harvest the crops. The first Additional Sessions Judge of Shahabad at Arrah has made this reference for setting aside the order of forfeiture of the earnest money.

2. The Standing Counsel, who has appeared on behalf of the State, has admitted that there is no provision of law, nor any term in the bid-sheet or in the order of settlement to the effect that the magistrate could forfeit the earnest money on non payment of the balance. He has, therefore, been unable to support the order of forfeiture, but he has argued the petitioner cannot be given the money unless he institutes a suit for its recovery and proves that he is entitled to recover it, I am not concerned at this stage as to how the petitioner can recover the earnest money. The only point under my consideration at the present moment is whether the order of forfeiture passed by the learned magistrate is correct. As it is admittedly incorrect, it must be set aside.

3. Accordingly, the reference is accepted and the order of forfeiture is set aside.