Enforcement of specific performance.

S. RAMACHANDRA IYER, C.J. :- This is an appeal from the judgment and decree of the Fifth Assistant Judge, City Civil Court, Madras in O. S. No. 1654 of 1957. The suit was instituted by the appellant for specific performance of a contract of sale of premises No. 41 Veda Vinayakar Koil St., Purasawalkam, Madras. The facts which gave rise to the suit are these -

2. In the year 1954, the second respondent who was the owner of the suit property No. 41 Veda Vinayakar Koil Street (now known as Perambur Barracks Road, Purasawalkam, Madras) created an equitable mortgage over it for securing a sum of money advanced to him by the first respondent. It is not disputed that the transaction conferred on the mortgagee a power to sell the mortgaged property. There was default in payment of the mortgage amount as stipulated. The first respondent purporting to act under the power of sale, caused the suit property to be sold by public auction through Messrs. Murray and Co., auctioneers. The relevant conditions of the sale are those contained in paragraphs 2, 3 and 6 of the proclamation which run as follows :

"1. The highest bidder shall be the purchaser and in case of any dispute, the lot shall be immediately put up again at the last preceding undisputed bidding and resold.

2. The purchaser shall pay into the hands of the auctioneers immediately after the lot is knocked down, a deposit of 25 per centum on the purchase money and shall sign a copy of the conditions of sale acknowledging the purchase and shall pay the residue of the purchase money to the auctioneers within 15 days from the date of purchase when the purchase is to be completed.

3. If the purchaser shall neglect or refuse to comply with the above conditions or any of them, the deposit money shall be forfeited to the mortgagee and shall not be returnable, and auctioneers shall thereupon and without any notice to the purchaser, be at liberty to resell the property either by public auction or private treaty and the deficiency, if any, arising from such resale together with all expenses attending the resale shall be made good by the defaulting purchaser to the mortgagee in case of any advantage shall forfeit the same."

3. In the sale that was held on 4-6-1957, there were three bidders; among them was the appellant who bid for Rs. 15000, an amount slightly over what was due under the mortgage. That being the highest bid, the appellant was declared by the auctioneer to be the purchaser. But the appellant did not have sufficient funds with him to make even the initial deposit of 25 per cent of the purchase price. He was able to pay on the spot only Rs. 1000. Later, however, he paid Rs. 2000 at his house, leaving a balance of Rs. 750 towards the initial deposit which was paid and accepted on the following day. There was default in the payment of the remaining 75 per cent of the purchase money, but this we shall refer to again after setting out certain events that took place before the due date for payment.

4. On the 7th of June 1957 the mortgagors advocate issued notices to the mortgagee, the auctioneers and the purchaser complaining that the property which was worth Rs. 30,000 was sold for half of its value, and that sufficient opportunity to bid was not even given to those that were present at the auction.

5. The mortgagee promptly denied the charges, but he expressed his willingness to cancel the sale if the mortgagor could bring an offer for Rs. 25,000 backed with 25 per cent advance. We cannot see how the mortgagee can override the rights of the appellant and make an offer of that kind. Probably he was convinced that the auction sale did not fetch a proper price and that an opportunity should be given to the owner to bring better offers. But there ensued further negotiations between the mortgagor and the mortgagee and strangely enough the appellant who was not bound by them appears to have acquiesced in the same. The reason is obvious. He had not sufficient funds in his hands to pay up