JUDGMENT

Ghulam Hasan, J - This is a revision application under Section 25, Small Cause Courts Act, against the judgment and decree passed by the Judge, Small Cause Court, Lucknow, dismissing the applicant's suit. The suit was originally filed in the name of the Secretary of State for India in Council, through the Deputy Commissioner of Lucknow, as plain, tiff, but, in view of the Government of India Act of 1935, the title of the suit was amended c to one by the United Provinces as plaintiff. The suit was for recovery of RS. 1000 as loss caused to the Government of the United Provinces at a resale of Peelkhana liquor shop in Lucknow. The auction sale of Feel khana liquor shop was held on 19th February 1937, at which the defendant made the highest bid of Rs. 10,000, which was accepted by the Excise Commissioner and the auction was confirmed in his favour. Under Rule 357(5) of the Excise Manual (vol. I) the auction purchaser is required to deposit a sum equal to one-sixth of the annual fees immediately on the conclusion of the sale for the day, and. the balance by such instalments as are specitied in the licence to be granted. If default is made in payment of the advance instalment, the shop or farm will be resold, and if the price finally bid at the resale be less than that bid at the first sale, the difference will be recovered from the defaulter. The defendant did not deposit the one-sixth advance instalment as required by the sub-rule. The result was that the shop was resold on 31st March 1937, fetching only Rs. 9000; thus there was a deficiency of Rs. 1000, which the United Provinces Government sued to recover from the defendant. The only defence which now survives for determination is the one contained in Para. 9 of the written statement, in which the defendant pleaded that as required by Rule 358(8) of the Excise Manual the officer conducting the sale should have on default of payment of the advance deposit by the defendant, resold the licence immediately or on the following day and if he wanted to postpone it to some other date he should have there and then notified the date of resale. The resale not having been made according to the directions contained in the aforesaid rule, the defendant was not liable to pay any deficiency which might have been caused by a resale which was alleged to be illegal, irregular and ultra vires.

2. The learned Judge of the Small Cause Court framed an issue upon this point and held that as the District Excise Officer conducting the sale did not notify the date of the resale then and there, namely on 19th February 1937, when the original sale took place, the subsequent resale was not in accordance with Rule 358(8) of the Excise Manual and consequently the penalty imposed under Sub-rule (5) of Rule 357 could not be recovered from him. In coming to this conclusion, the learned Judge has also placed emphasis upon the fact that notice of the date of resale was not given to the defendant. I am unable to accept this view. Rule 357 of the Excise Manual lays down the general conditions as to auctions of liquor shops. Sub-rule (1) says that the officer conducting the sales is not bound to accept the highest or any bid. Sub-rule (3) says that every person bidding will be held to his bid, whether it be the highest or not. Sub-rule (5) lays down that a sum equal to one-sixth of the annual fees shall be payable immediately on the conclusion of the sales for the day, and the balance by such instalments as are specified in the licence to be granted. If default be made in the payment of the advance instalment, the shop or farm will be resold, and if the price finally bid at the resale be less than that bid at the first sale, the difference will be recovered from the defaulter. Rule 358(7) lays down that all advance deposits are payable on the fall of the hammer or, at latest, immediately on conclusion of the sales for the day. Sub-rule (8) lays down that.

if the bidder fail to make the advance deposit referr