JUDGMENT MODY J. - [After setting out the facts the judgment proceeds] In support of the appellants contention that the sale is no sale in law or that the sale should be set aside, Mr. Dhanuka, its learned counsel, contended that under the relevant pr -visions of law, it is a mandatory requirement, firstly, that 25 % of the purchase price must be deposited at the time of the sale and, secondly, that the whole balance of the purchase price must be paid to the Commissioner WI hilt thirty days from the date of the sale. He contended that the first respondent, however, did not make the said deposit of 25% or any part thereof, nor did the first respondent pay the amount of the 75% balance in full, but deposited such amount after retaining the said sum of Rs. 75,000. 2. In support of his contention Mr. Dhanuka relied upon rules 500.A and 497 of the Rules of this Court applicable on its Original Side, which rules are hereinafter referred to as "The Original Side Rules". The said rule 500-A provides as under: "500-A. (i) When immovable property is to be sold, unless otherwise ordered or agreed to by the parties, not less than twenty-five per cent of the purchase-money shall be deposited with the Commissioner at the time of the sale. (ii) The balance of the purchase-money, or so much thereof as may be pa}able by reason of any set-off to which the purchaser may be entitled, together with the amount of stamp-duty payable on the conveyance to be executed or on the sale certificate to be issued. shall, unless otherwise ordered, be paid by the purchaser to the Commissioner within 30 days from the date of the sale The Judge sitting in Chambers may, for special reasons, extend the time for payment on such conditions as to payment of interest or otherwise as to the Judge may seem fit. If the Judge extends the time, the provisions of clause (iv) shall not come into operation until the expiry of the extended time. If the Judge extends the time, the provisions of clause (iv) shall not come into operation until the expiry of the extended time. (iii) In default of payment of the deposit mentioned in sub-rule (i), the bid of the person who would otherwise have been declared the purchaser shall be rejected and the property shall forthwith be re-sold (iv) In default of payment of the amounts mentioned in sub-rule (ii) within the period prescribed therein, the deposit may, If the Judge thinks fit, after defraying the expenses of the sale, be forfeited to the Government, and the property shall be re-sold, and tile defaulting purchaser shall forfeit all claim to the property or to any pan of the sum for which it may subsequently be sold. (v) Any deficiency of price which may arise on a re-sale by reason of the purchasers default and all costs and expenses occasioned by such re-sale shall be recoverable from the defaulting purchaser under an order to be obtained from the Judge in Chambers. The Judge may direct the defaulting purchaser to pay interest at such rate from the date of default and on such amount as to the Judge may seem just." 3. The said rule 497, in so far as it is material, provides that when immoveable property is to be sold, the conditions shad be adapted to the state of the title to the said property and that the Conditions of Sale shall be in Form No. 151 or Form No. 152 as the case may be with variations as the circumstances of each case may require. 4. Mr. Dhanuka contended that under sub-rule (i) of the said rule 500 A the 25% deposit must be made on the date of the sale "unless otherwise ordered or agreed to by the parties", but there was no such specitic order "otherwise ordering" nor was there anything "otherwise agreed to by the parties. He pointed out that there was such a provision contained in the said old Condition No.5 applicable to the eighteenth sale, but that in the revised Condition No.5 application to the last sale such a provision was omitted from Condition No.5 by deleting the words "other than the plaintiffs". He contended that this is a deliberate departure. Mr. He pointed out that there was such a provision contained in the said old Condition No.5 applicable to the eighteenth sale, but that in the revised Condition No.5 application to the last sale such a provision was omitted from Condition No.5 by deleting the words "other than the plaintiffs". He contended that this is a deliberate departure. Mr. Thakkar, the learned counsel for the first respondent, commended that this omission from the Condition No.5 was due to the fact that between the two dales of the said old and new conditions, the Original Side Rules were revised, certain rules were deleted and the Bald new rule 500-A was Introduced and that It is because of that reason that it was considered to be unnecessary and redundant to return the words "other than the plaintiffs" as liberty to bid and set-off given to the first respondent implied that the first respondent could set off ,be mortgage debt against the amounts of both the deposit of 25% and the payment of the balance of 75% 5. Now under rule 500-A (i) deposit is not to be made if it is otherwise ordered or it is so agreed. Whether the omission from the new Condition No.5 of the said words "other than the plaintiffs" be a deliberate departure as contended by Mr. Dhanuka or it be due to having been made on the ground that it was considered to be unnecessary and redundant as contended by Mr. Thakkar, it is clear that there is no specific agreement between the parties dispensing with the requirement of the 25% deposit in case the first respondent became the purchaser. As there is no such agreement between the parties, it has next to be ascertained whether it has been "otherwise ordered". 6. Mr. Thakkar contended that the liberty to set off granted to the first respondent by the decree absolute for sale must be construed as having been "otherwise ordered" by the Court as contemplated in sub-rule (i) of rule 500-A either expressly or in any event, impliedly. In our opinion, it is obvious that there is no such express order made by the Court. Mr. Thakkar also relied upon the said Minutes of the Commissioner dated 11th September 1970 and argued that it was such an order. In our opinion, it is obvious that there is no such express order made by the Court. Mr. Thakkar also relied upon the said Minutes of the Commissioner dated 11th September 1970 and argued that it was such an order. These Minutes are what they purport to be, i.e., a record of what transpired at the meeting before the Commissioner when it says that no deposit was taken from the first respondent. The Minutes merely record a statement of fact and do not amount to an order dispensing with the deposit of 25 per cent. It is a statement of fact and not an order. It is, therefore, unnecessary to decide whether the Commissioner has or does not have the power to "otherwise order" i.e., to make an order dispensing with the requirement of sub-rule (i) of rule 500-A for a deposit of 25%. It must, however, be borne in mind that sub-rule (i) of rule 500-A does not specifically provide that such "otherwise ordered" must be a specific order. There can, therefore, be an implied order. In. our opinion, in a sale under a mortgagedecree when an order is made under the Original Side Rules giving liberty to the mortgagee-decree holder to bid and set-off, the liberty to set off would imply that to the extent of the amount of the set off it "otherwise orders" as contemplated by the sub-rule (i) unless, of course. the order contains a contrary Or inconsistent provision. These sales are ill pursuance of a mortgage-decree and not a simple money decree, The provision in the Slid sub-rule (i) for a deposit of a substantial pan like 25% of the purchase price together with the provision for its forfeiture, has been made with the obvious intention of guarding against bids being given by a person who is declared to be a purchaser but who does not intend to complete his purchase or is incapable of completing his purchase or subsequently wants to unjustifiably back out of his purchase. When the purchaser is the holder of the decree and the decree is a mortgagedecree, the decree in his favour is by itself a security. When the purchaser is the holder of the decree and the decree is a mortgagedecree, the decree in his favour is by itself a security. Moreover, even when liberty to set-off has been ordered the Court has the power till the sale is confirmed to order the purchaser to bring the purchase money or the necessary part of it into Court and the fulfilment of such an order by the mortgagedecree-holde-purchaser is secured by his mortgage-decree itself. 7. Mr. Dhanuka pointed out that the word used in the said sub rule (i) of rule 500-A in connection with the deposit is "shall" which means that the requirement of the 25% deposit is mandatory. Mr. Dhanuka further pointed out that sub-rule (iii) of rule 500-A provides that in default of payment of the deposit mentioned in sub-rule (i) the bid of the person who would otherwise have been declared the purchaser shall be rejected and the property shall forthwith be re-sold and that this also shows that the provision about deposit is mandatory. In our opinion, it is not necessary for us to decide whether this provision is or is not mandatory because, even if the provision of sub-rule (i) for making the deposit were to be held to be mandatory as contended by Mr. Dhanuka, sub-rule (i) itself creates two exceptions, one of which is when it is "otherwise ordered". Such a provision would be an exception to what Mr. Dhanuka contended is a mandatory provision. In our opinion, as sub-rule (i) does not specifically require that an order, in order to hold that it has so "otherwise ordered", must do so expressly, it can be held to be of that nature even if it can be held to so Older even by implication. The decree absolute for sale in the case before us permits set off for the full decretal amount. The decree absolute for sale in the case before us permits set off for the full decretal amount. It does not appeal to reason or to common sense that when the auction-purchaser is himself the holder of a mortgage-decree in his favour and it is the same Court which has passed that decree which is selling the property and the decree is a mortgage-decree with the result that to the extent of the amount of the decree no question of rateable distribution between the attaching creditors of the mortgagor can possibly arise, the set-off should be confined to the payment only of the balance of the purchase price, but should not be extended to the initial deposit of 25%. We are of the opinion that the permitted set off must extend to the entire purchase price, i.e, to both the initial deposit of 25% and also the subsequent payment of the balance but only to the extent of the amount of the decree and that when the Court made the order permitting such set-off, it has impliedly ordered that the morgagee-decree holder purchaser is not required to make The deposit of 25%. We have reached this conclusion as a matter of interpretation of the order. i.e., the decree absolute for sale. We are, however, otherwise satisfied that this conclusion is in accordance with what appears to be the interpretation put on it by the practice of this Court extending over a long period. These sales are effected through the Commissioner of this Court who is a permanent officer of the Court assigned the work of effecting such sales and he is not a Commissioner appointed only for effecting an individual such sale. He would normally ascertain his office practice and follow it. In this case the Commissioner has, as seen earlier, stated that he his not taken the deposit as the first respondent has been granted liberty to bid and set-off. In the natural course of his work and in the background of the knowledge which he has acquired, the word which he has used is "taken". It suggests that because of the liberty to bid and set-off he did not even ask for the deposit of 25% of the purchase price being made. In the natural course of his work and in the background of the knowledge which he has acquired, the word which he has used is "taken". It suggests that because of the liberty to bid and set-off he did not even ask for the deposit of 25% of the purchase price being made. One of the cases cited before us, but in another connection, was the judgment delivered by Marten C. J. on behalf of a Division Bench of this High Court in Vrajlal Jivandas v. Venkataswami Lingaya 1. It concerns a sale by the Commissioner of this Court of an immoveable property under a mortgage-decree under which the mortgagee-decree holder was given liberal to bid and set off and the mortgagee, he being ,he highest bidder, was declared the purchaser. The portion of the judgment at page 463 of the Report refers to the certificate issued by the Commissioner in respect of that sale. The Commissioner certified that at the sale the plaintiff, in that suit were "the highest bidders for and were. subject to confirmation by this Court, declared the purchasers of the said property at the price or sum of Rs, 1,45,00J and that I have allowed them to set-off the said sum of Rs. 1,45,000 against an equivalent part of the amount due to them und-er the said preliminary decree." It is obvious from this certificate that the Commissioner allowed the entire amount of .the purchase price, i. e., both the amount of the deposit of 25% and the balance amount, to be set-off against the amounts due under the mortgagedecree without taking a deposit of 25%of the purchase price. 8. Mr. Dhanuka drew our attention to rules 72, 84 and 85 of Order XXI of the Cede of Civil Procedure. Now it must be remembered that under section 129 of the Code of Civil Procedure this High Court is entitled to make Rules to regulate its own procedure in the exercise of its Original Civil Jurisdiction as it shall think fit and that this High Court has, as a matter of fact, made the said Original Side Rules. The procedure on the Original Side of this High Court is governed by the Original Side Rules and not by the provisions of the Code of Civil Procedure to the extent that there are provisions in the Original Side Rules. In view of section 129, Mr. The procedure on the Original Side of this High Court is governed by the Original Side Rules and not by the provisions of the Code of Civil Procedure to the extent that there are provisions in the Original Side Rules. In view of section 129, Mr. Dhanuka himself sated that the provisions under Order XXI would not apply to sale of immoveable properties by the Commissioner of this Court. He, however, Slated that he would refer to the rules in Order XXI which contain similar provisions only for the purpose of comparison of their contents and the in1erpretation put on them by decided cases. On the topics dealt with by the said three rules of Order XXI there are specific provisions made in the Original Side Rules, and particularly in the said rule 500-A. Order XXI applies to sales of properties both moveable and immoveable at ached in execution of simple money decrees and also to sales under mortgage-decrees. Rule 449 of the Original Side Rules contains the procedure for attachment and sale in execution not only of moveable, but also of immoveable properties, i. e, to sales in execution of simple money decrees and provides that the sale shall be by the Sheriff In the case of mortgage-decrees it is rule 491 which applies and it provides that the sale shall be by the Commissioner of this Court and a different set of Rules, including the said rules 497 and 500-A, apply. Mr. Dhanuka conceded, and has, as a matter of fact, argued on the basis, that it is the Original Side Rules which apply and not Order XXI. In our opinion, no useful purpose would be served by referring to all the decided cases cited at the Bar relating to the said rules 72, 34 and 85 of Order XXI of the Code of Civil Procedure, for determining whether the requirement in respect of the deposit of 25% is or is not mandatory because those decisions do not construe the provisions of the relevant Original Side Rules. Nonetheless, we will refer to some of the decided cases cited on either side on the point whether the provision for deposit of 25% under rule 84 of Order XXI has or has not been held to be mandatory. 9. Mr. Nonetheless, we will refer to some of the decided cases cited on either side on the point whether the provision for deposit of 25% under rule 84 of Order XXI has or has not been held to be mandatory. 9. Mr. Dhanuka in this behalf first relied upon a judgment of the Supreme Court in Manilal Mohanlal v. Sardar Sayed Ahmed," and particularly upon the following paragraph therefrom appearing at page 16 which reads: "The provision regarding the deposit of 25 per cent. by the purchaser other than the decree-holder is mandatory as the language of the rule suggests. The full amount of the purchase-money must be paid within fifteen days from the date of the sale but the decreeholder is entitled to the advantage of a set-off. The provision for payment is, however, mandatory (rule 85). If the payment is not made within the period of fifteen days, the Court has the discretion to forfeit the deposit and there the discretion ends but the obligation of the Court to re-sell the property is imperative A further consequence of nonpayment is that the defaulting purchaser forfeits all claim to the property (rule 86)." He contended that this passage shows that the provision regarding the deposit of 25% under rule 84 and the payment of the balance of 75% under rule 85 is mandatory. Mr. Dhanukas argument, however does not take due notice of what the Supreme Court has said, viz., that these observations apply to a purchaser "other than the decree-bolder". It is clear that the Supreme Court has not said, nor had it an occasion to say that when the purchaser is a decreeholder the requirement of the deposit of 25% under rule 84 is mandatory. In the paragraph immediately preceding the paragraph quoted above, the Supreme Court, after analysing the scheme of rules 72, 84 and 85 of Order XXI, has observed (p. 15): "The scheme of the rules quoted above may be shortly stated. A decree-holder cannot purchase property at the court-auction in execution of his own decree without the express permission of the Court, and that when he does so with such permission, he is entitled to a set-off. A decree-holder cannot purchase property at the court-auction in execution of his own decree without the express permission of the Court, and that when he does so with such permission, he is entitled to a set-off. but if he does so without such permission, then the Court has a discretion to set aside the sale upon the application by the judgment-debtor, or any other person whose interests are affected by the sale (rule 72). As a matter of pure construction this provision is obviously directory and not mandatory - See Radha Krishna v. Bisheshar Sahay.3 The moment a person is declared to be the purchaser he ii bound to deposit 25 per cent of the purchase-money unless he happens to be the decree-holder, in which case the Court may not require him to do so (rule 84)." This quotation clearly shows that according to the Supreme Court the provision about the deposit of 25% when the purchaser is B decree-holder "is obviously directory and not mandatory." 10 Mr. Dhanuka also relied upon a judgment of a single Judge of the Madhya Pradesh High Court in Kishanlal v. Kothari Jethmal.4 This judgment is not helpful to determine whether the provision about the deposit of 25% is mandatory or is only directory. The only point which arose for consideration in that case was as to what was the point of time at which the sale in execution proceedings becomes legally effective and it was held that it becomes effective when the sale is confirmed as it then becomes absolute and legally effective and that till then the sale does not become complete and legally effective. 11. The third case relied upon by Mr. Dhanuka was also a judgment of a single Judge of the Andhra Pradesh High Court in Sivaraya v. Lingareddi.5 Mr. Dhanukas contention is that this judgment holds that a decree-holder who bas been granted liberty to bid and set-off under the provision , of rule 72 of Order XXI, purchases the property, the order granting the set-off does not necessarily imply that he has been given liberty to set-off even against the deposit of 25% required to be made under rule 84 of Order XXI and that there should be a specific order granting liberty to set-off for the amount of the deposit of 25% 12. In our opinion, out of these three judgments relied upon by Mr. In our opinion, out of these three judgments relied upon by Mr. Dhanuka it is only the said judgment of the Andhra Pradesh High Court which holds that the requirement of the deposit of 25% is mardatory even in the case of the purchaser being a decree-holder and that unless there is a specific order to the contrary, he is bound to make that deposit of 25% in spite of liberty to bid and set-off having been given to him in general words. 13. Mr. Thakkar, in his turn, relied upon three judgments, one of the Rajasthan High Court and two of the Madras High Court to which we will presently refer. 14. The Rajasthan High Court judgment is a judgment of Wanchoo C. J. who delivered the judgment on behalf of a Division Bench in Kanhaiyalal v. sansmal.6 The judgment holds that reading rules 72 and 84 of Order XXI together an is clear that where a decree-holder is permitted to bid at an auction, there is an implied dispensation also that he need not deposit 25% of the purchase money unless the sale price is more than the decretal amount, that where the sale price is more than the decretal amount, the decree-holder must deposit the excess upto 25% of the purchase money, depending upon the excess of the sale price over the decretal amount and that there is no sense in insisting upon the decree-holder depositing 25% of the purchase money, when the purchase money is less than or only equal to the decretal amount. This judgment takes a view contrary to that taken in the above Andhra Pradesh High Court judgment and holds that the requirement of the deposit of 25% can be implied in the circumstances mentioned in the judgment even though the under fur set-off is in general words and does not specifically refer to the requirement of the deposit of 25%. The observations in this judgment requiring tae deposit of 25% to be made to the extent mentioned in the judgment when the sale price exceeds the amount of the decree held by the decree-holder-purchaser, it should not go unnoticed, have been made in the case of the holler of a simple money decree and not a mortgage-decree. The observations in this judgment requiring tae deposit of 25% to be made to the extent mentioned in the judgment when the sale price exceeds the amount of the decree held by the decree-holder-purchaser, it should not go unnoticed, have been made in the case of the holler of a simple money decree and not a mortgage-decree. Unlike as in the case of a mortgagedecree, in the case of a sale in execution of a simple money decree the complication of rateable distribution can arise and would require consideration. The second point which would also have to be borne in mind is, firstly, that the sale in execution following an attachment may be made by a Court other than Court which passed the money decree and, secondly, that the money decree mayor may not, if the sale falls through, be recoverable and is in that sense unsecured unlike as in the case of a mortgage-decree where the amount is, at least to the extent of the mortgage security, secured. 15. The second judgment relied upon by Mr. Thakkar was that of a single Judge in Bhyraraju Ramaraju v. Lakshmiah.7 The judgment holds that where the holder of a money decree who has been given permission to bid and set-off is declared the purchaser, if the amount of his decree be equal to or less than the purchase price, he need not make the deposit of 25%, nor pay the balance, but that if the sale price exceeds the amount of his decree, he can be called upon to deposit the difference only at the time when he is called upon to pay the balance under rule 85 of Order XXI, unless, of course, his decretal amount is not sufficient to cover even the deposit of 25%, in which case he must deposit the short-fall in his decretal amount as compared with the deposit of 25%. 16. The third judgment relied upon by Mr. Thakkar was the judgment of a single Judge of the Madras High Court in Murugappa v. Ramasami8. This judgment also is to the same effect as the other judgment of the Madras High Court in the above case of Bhyraraju Ramaroju v. Lakshmiah. 17. The provisions of the relevant rules of Order XXI were relied upon by Mr. Thakkar was the judgment of a single Judge of the Madras High Court in Murugappa v. Ramasami8. This judgment also is to the same effect as the other judgment of the Madras High Court in the above case of Bhyraraju Ramaroju v. Lakshmiah. 17. The provisions of the relevant rules of Order XXI were relied upon by Mr. Dhanuka only by way of a help when construing the provisions of rule 500-A. We have already pointed out the difference between the two provisions and the cases where they can apply. Nonetheless, even the judgments relating to the relevant rules under Order XXI do not hold that the requirement as to the deposit of 25% is mandatory The judgment of the Supreme Court does not so hold nor do the said other judgments, except the and judgment of the Andhra Pradesh High Court. The judgments of the Rajasthan and Madras High Courts show that permission granted to a decree-holder in general terms to bid and set-off can be construed, depending on the circumstances of the case, by comparing the amount of the purchase price with the decretal amount due to the decree- holder-purchaser, to include a right to setoff even against the deposit of 25% and that for the latter purpose there need not necessarily be a specific order permitting set-off against the amount of the deposit of 25%. The view taken by the Rajasthan and the Madras High Courts is, with respect to all the judgments referred to above, a view taken not merely on a construction of the relevant rules of Order XXI but based on common. sense. Needless to repeat that that view acquires greater strength when the sale is in pursuance of a decree absolute for sale in a mortgage suit and the decree-holder is the purchaser. We therefore, hold that if the mortgageerdecree-holder is declared the purchaser and he has been granted liberty to bid and set-off, then even though there be no specific order permitting the set-off against the amount of the deposit of 25% required to be made under sub-rule (i) of rule 500-A of the Original Side Rules, he is entitled to set off the amount decreed in his favour by the mortgage-decree, to the extent of that decretal amount, first against the- said deposit of 25% and thereafter against the balance of his purchase price. We accordingly hold that in this case before us the first respondent was entitled to set-off its mortgage claim, which exceeded the amount of the deposit of 25% provided for under sub-rule (1) of rule 500 A of the Original Side Rules, and that it was, therefore, not bound to make the said deposit of 25%. We must, therefore, hold, which we do, that the sale is not an invalid sale, nor can it be set aside on the first ground urged by Mr. Dhanuka. 18. It should be noted that Mr. Thakkar had contended that even if the sale were to be held to be invalid or it were to be set aside on the ground that the first respondent was under an obligation to make the deposit of 25%, but it failed to do so, the appellant had in the present case waived the said requirement of the deposit of 25%. In view of the conclusion which we have reached, it is unnecessary for us to decide this contention of the first respondent about waiver. 19 We will now turn to the second contention urged by Mr. Dhanuka. He contended that under the requirement of sub-rule (ii) of rule 500-A the first respondent was bound to deposit an amount of the full balance of 75% without deducting therefrom the said sum of Rs. 75,000 which the first respondent has in fact deducted for its costs as estimated by it. He contended that on this ground also the sale is an invalid sale and is in any event liable to be set aside. 20. Now, the preliminary decree, in so far as it concerns the first respondent, declares that there was due to the first respondent at foot of the mortgage an aggregate sum of Rs. 11,44,617.75 for principal and interest as at the date of the decree and further compound interest at the rate of four and a half per cent. per annum with yearly rests from the date of decree till the date fixed for redemption and thereafter at the rate of four and a half per cent. per annum till payment and "the costs of the suit when taxed as between attorney and client and noted in the margin hereof" with simple interest on such costs at the rate of four per cent. per annum "from the date of the decree" till payment. per annum till payment and "the costs of the suit when taxed as between attorney and client and noted in the margin hereof" with simple interest on such costs at the rate of four per cent. per annum "from the date of the decree" till payment. It is clear that the costs awarded by the preliminary decree to the first respondent are the costs of the suit till the date of the preliminary decree. The preliminary decree is silent as to the first respondents costs subsequent to the preliminary decree. To that provision for costs the decree absolute for sale adds a sum of Rs. 220 for costs, being the costs of obtaining the decree absolute for sale. The amount of Rs. 75,000, which the first respondent retained with it when paying the amount of the balance of the purchase price, admittedly represented not only the costs covered by the preliminary decree and the decree absolute for sale, but also the subsequent coots which related to the sale of the property, and according to Mr. Thakkar also, the costs which the first respondent as mortgagee had to incur in respect of another suit, the costs whereof were ordered to be costs in the mortgage suit. 21. Now Mr. Dhanuka advanced five arguments in support of his said second contention. His first argument was that under the preliminary mortgage-decree, the costs of the suit become payable only when they are taxed and noted in the margin of the decree, but that they have not been taxed, much less noted in the margin of that decree. His second argument was that neither of the two decrees on their wording entitled the first respondent to costs other than the costs of the suit upto the dale of the preliminary decree and the said sum of Rs. 220. His third argument was that neither of the two decrees, nor even the Original Side Rules, provide fur a set-off being made for the costs subsequest to the decree absolute for sale which have not even been ordered to be paid. His fourth argument was that in any event there can be no set-off in respect of estimated costs as the same are not an ascertained sum. His fifth argument was that no data whatever has been furnished by the first respondent to show how the first respondent estimated the costs in the sum of Rs. His fourth argument was that in any event there can be no set-off in respect of estimated costs as the same are not an ascertained sum. His fifth argument was that no data whatever has been furnished by the first respondent to show how the first respondent estimated the costs in the sum of Rs. 75,000 and that in any event the amount of Rs. 75,000 is an exorbitant amount. He contended that the deduction of Rs. 75,000 made the payment actually made an insufficient payment or tender and that the sale must, therefore, be held to be invalid or should be set aside. 22. Now as regards the first three of these five arguments of Mr. Dhanuka, Mr. Thakkar did not dispute that the costs of the suit have not been taxed or noted in the margin of the preliminary decree nor that neither the preliminary decree nor the decree absolute for sale provides for the first respondents costs subsequent to the decree absolute for sale nor that neither the two decrees nor the Original Side Rules provide for a set-off for such subsequent costs. He contended that nonetheless the first respondent is entitled to estimate such subsequent costs and to set-off the same against the purchase price because of a practice of this Court. 23. It is by the first respondents Attorneys said letter dated 30th September 1970 addressed to that Commissioner that the first respondent stated that it would retain the sum of Rs. 75,000. The statement contained in that letter in this connection reads: "In addition to the aforesaid aggregate amount of Rs. 16,13,163.21 Ps. due to my clients for principal and interest further amount would also be due to them for costs. The above suit is of the year 1949 and since considerable costs have been incurred, including the costs of so many as 18 auction sales of the mortgaged property held by you since 25th June 1951, the taxation of all such costs would take a long time. My clients roughly estimate these costs at Rs. 75,000 and request you to allow them to arid the said estimated costs to the aforesaid aggregate amount of Rs. 16,13,163.21 Ps. My clients roughly estimate these costs at Rs. 75,000 and request you to allow them to arid the said estimated costs to the aforesaid aggregate amount of Rs. 16,13,163.21 Ps. due to them for principal and interest so as to make their total dues for principal, interest and costs amounting to Rs.16,118,163.21." Thereafter the first respondent filed with the Commissioner of this Court an affidavit dated 5th October 1970 of Bodhraj Dhanda, the Assistant Secretary of the first respondent, in paragraph 4 whereof the first respondent stated: "The plaintiffs corporation, therefore, hereby undertakes to pay the learned Commissioner whatever balance found due and payable by them in respect of their said costs in case the said costs are found less than Rs. 75,000 on taxation by the Taxing Master of this Honble Court." 24. The paid practice of this Court relid upon by the first respondent has been averred in the affidavit in reply filed by the first respondent in the matter of the said Chamber Summons. It is stated in paragraph 6 thereof as under: "The estimated cost of the suit is not only the cost awarded under the decrees herein but is inclusive of the cost of so many as 18 auction sales of the mortgaged property already held by the Commissioner in reference for sale made to him under the decree absolute for sale. The suit is of the veal 1949 and the plaintiffs have incurred considerable costs in conducting the suit for so many as 21 years and according to Courts practice all costs incurred after the decree absolute for sale are awarded at the time of confirmation of sale and all such costs in case of the plaintiffs being declared purchasers are allowed by the Commissioner to be set off and as it usually takes considerable time to have all such costs taxed the Commissioner always makes provision for costs by retaining certain sum out of the sale proceeds in his hands. On nth October 1970 the plaintiffs sent to the Commissioner their cheque for Rs. 5,00,556.79 Ps. and not for Rs. 5,00,00,556.79 Ps. as incorrectly stated in the said para. 4. As required by the Commissioner the plaintiffs have given an undertaking by affidavit to pay the balance in case the costs when taxed or settled are less than Rs. 75,000. On nth October 1970 the plaintiffs sent to the Commissioner their cheque for Rs. 5,00,556.79 Ps. and not for Rs. 5,00,00,556.79 Ps. as incorrectly stated in the said para. 4. As required by the Commissioner the plaintiffs have given an undertaking by affidavit to pay the balance in case the costs when taxed or settled are less than Rs. 75,000. In fact the matter was discussed informally at a meeting held to pass the accounts of the Receiver when V. G. Pittie who has made the affidavit in support of the Chamber Summons was present and when it was decided to follow the aforesaid procedure." The said affidavit in reply in its paragraph 7 further states as under: ".......... The plaintiffs further submit that they are entitled to deduct the costs of the various auction sales which were about eighteen in number out of the purchase price in addition to the other costs awarded to them. Since taxing of all costs would take considerable time the plaintiffs have with the consent of the Commissioner for taking accounts duly estimated their costs and paid the balance as aforesaid and reserved their right to claim from the said balance the excess amount in case the costs after taxation exceed the said sum of Rs. 75,000 and have given an undertaking by an affidavit that in case the costs ultimately taxed are Jess than the: said sum of Rs. 75,000 then the plaintiffs would pay the difference. The plaintiffs submit that this is the only practical way of dealing with the matter." To this affidavit in reply the appellant filed an affidavit in rejoinder of V. G. Pittie dated 3rd November 1970. Paragraph 2 of that affidavit deals with paragraphs 3 to 7 of the said affidavit of Bodhraj Dhanda in reply. The contents of that paragraph are an outstanding example of supreme vagueness. Its first sentence states that paragraphs 3 to 7 of the affidavit in reply are mainly argumentative and that the deponent had been advised not to aver to the arguments. It then says that those paragraphs also contain allegations of halt truths made by the appellant with a view to cause prejudice. What statements are half truths has not been specified either expressly or even by implication. It then says that those paragraphs also contain allegations of halt truths made by the appellant with a view to cause prejudice. What statements are half truths has not been specified either expressly or even by implication. It then purports to point out that in the affidavit in reply it is stated that the property was knocked down after a period of 20 years but the first respondent had not stated that it was for the first time put up for sale only in 1965. Now, the record of the Commissioner shows that the auctions were held from time to time since as far back as 1951 and innumerable infructuous sales were held before 1965 and this statement is, therefore, either made without due care or is a deliberate untruth. In paragraph 6 of, or anywhere else in, the said affidavit not a word is said about the practice, either confirming it or denying it or stating anything which is inconsistent with the same. The affidavit in rejoinder being what it is, it must, therefore, be held that the appellant has not at all denied, and has as a matter of fact deliberately avoided denying, the existence of the practice as averred by the first respondent in the said affidavit in reply. The existence of a practice, be it the practice of the Office of the Commissioner or of the Court, is a question of fact. It has been so averred in the affidavit in reply and it has not been denied either expressly or even by implication in the affidavit in rejoinder. We, therefore, hold, all we must, that the existence of the practice as averred in the affidavit in reply has been proved. 25. But apart from this practice being held established by reason of the assertion of the first respondent and want of denial by the appellant, we arc satisfied that there is something more to support the conclusion that such practice exists. On the Notice of Motion dated 26th December 1970 taken out by the appellant in this appeal, the first respondent filed an affidavit of Jamshed Phirozeshaw Contractor dated 25th January 1971. To that affidavit has been annexed as Exh. No.1 a copy of the Minutes of the Commissioner of a meeting dated 16th December 1970 held before him in relation to the sale which is the subject-matter of the present appeal. To that affidavit has been annexed as Exh. No.1 a copy of the Minutes of the Commissioner of a meeting dated 16th December 1970 held before him in relation to the sale which is the subject-matter of the present appeal. The question before him was concerning the first respondents retention of the said sum of Rs. 75,000 and in that connection the Commissioner observes in those minutes: "It is true that what the plaintiff-decree-holder is entitled to set-off is the cost of the suit as would be taxed hereafter and that today the said Costs are not taxed. In all such easel, the practice followed by this office is to take a statement of account from the plaintiff-decree-holder, who ill also the auction-purchaser, Showing the different amounts for principal and interest as well as the estimated costs due under the decree and allow such amount of estimated costs to be bet off. This procedure is followed for the reason that the taxing of costs taken a considerable time after the sale is knocked down. It is quite possible that such estimated costs as are sought to be deducted by the decree-holder may be more or less. In order to safeguard the interest of all concerned an undertaking is taken from the decree-holder on affidavit stating that if the taxed costs turn out to be less than the estimated costs included in the statement of account filed by him, the difference shall be deposited by him after the costs are taxed. On the plaintiffs letter dated 30th September 1970 I had directed the plaintiffs to give such an undertaking and such undertaking was given by the plaintiffs by affidavit of their Assistant Secretary of the Mortgage Department, dated 5th October 1970. The Commissioner of this Court is one of the highest officers of this Court. His statements are prima facie worthy of credit unless some flaw is pointed out. He must have referred to the practice from his own knowledge and, what is of greater importance, from the records available in his office. 26. The practice negatives Mr. Dhanukas arguments that the first respondent was not entitled to set off the costs subsequent to the decree absolute for sale and that no set-off could be allowed as the sum of Rs. 75,000 was not an ascertained amount as no costs whether upto or after the preliminary decree had been taxed. 27. 26. The practice negatives Mr. Dhanukas arguments that the first respondent was not entitled to set off the costs subsequent to the decree absolute for sale and that no set-off could be allowed as the sum of Rs. 75,000 was not an ascertained amount as no costs whether upto or after the preliminary decree had been taxed. 27. Mr. Thakkars contention was that by reason of the existence of such practice it must be deemed to have been incorporated in the Original Side Rules and in the decree absolute for sale or that in any event the payment after deduction of Rs. 75,000 cannot be held to be an insufficient payment or tender. The existence of such a practice supports this contention of Mr. Thakkar. 28. In connection with the question of practice, it must, however, be considered whether the practice is or is not repugnant to or inconsistent with any provisions of law. Under the general law, and particularly under the provisions of the Transfer of Property Act, a. mor1gagee is entitled to all costs properly incurred by him for realising his security. Such a provision has, as a matter of fact, been made in sub-rule (3) of rule 5 and sub-rule (1) of rule 4 of Order XXXIV of the Code of Civil Procedure under which the mortgagee is entitled to his costs charges and expenses subsequent to the preliminary decree. The provisions of rules 10 and 13 of Order XXXIV are also to the same effect. The Original Side Rules, and particularly rule 1086, provide Form No 35 for a preliminary decree and Form No. 37 for a decree absolute for sale. Neither of these two Forms contains a provision about costs subsequent to the preliminary decree and the decree absolute for sale respectively. As the mortgagee is entitled to all the costs of realising his mortgage security, there ought to be some provision whereby the mortgagee can recover such subsequent costs. The actual order for costs subsequent to the decree absolute for sale is normally made by this Court at the time when the Court makes the order confirming the sale by ordering all proper costs incurred after the date of the decree absolute for sale till and inclusive of the confirmation of sale to be tacked on to the mortgage claim and to be paid out of the net sale proceeds. But when the mortgagee-decree holder is given liberty to bid and set-off, the question of set off of costs against the amount of the balance of 75% would arise prior to the time when the Court would consider the question of confirming the Bale. It stands to reason and common sense, therefore, that a practice as referred to by the first respondent and also by the Commissioner has come into existence in this High Court. Such a practice does not appear to be in any way repugnant to or inconsistent with any provision of law. The clear effect of the existence of such a practice would be to read it by way of a necessary implication into the provisions of rule 500-A and into the decrees passed in the Forms prescribed by the Original Side Rules fur drawing up preliminary mortgage-decrees and decrees absolute for sale, unless, of course, there is some order of the Court to the contrary. Moreover, the sales under mortgage-decrees are conducted by the Commissioner of this Court. The mortgagee initially supplies the funds to the Commissioner to enable the Commissioner to incur the costs of such sale. As such costs are incurred by or through the Commissioner, there arises no question of such costs being improper. There are, therefore, good chances for the mortgagee to ultimately recover the costs of sale out of the sale proceeds. Moreover, the Commissioner has experience as to what the costs, though not taxed, would approximately amount to. If the mortgagee for any reason happens to over-estimate his costs, the Commissioner would in all normal cases be able to question the mortgagee and if necessary ask for a split up and satisfy himself as to what the correct estimate should be. Such an estimate would normally be discussed at a meeting before him where the attorneys of the mortgagee and also of the mortgagor would be present. In view of this safeguard so available for checking the estimates of costs, the practice seems not only to be reasonable, but to be consonant with common sense. 29. It had, however, been contended on behalf of the appellant that under sub-rule (ii) of rule 500-A the time for payment of the balance of the purchase price is mandatory, became sub-rule (iv) provides that upon non-payment within the thirty days prescribed under sub-rule (ii) there should be an immediate resale. 29. It had, however, been contended on behalf of the appellant that under sub-rule (ii) of rule 500-A the time for payment of the balance of the purchase price is mandatory, became sub-rule (iv) provides that upon non-payment within the thirty days prescribed under sub-rule (ii) there should be an immediate resale. It was contended that the effect of the said practice would be to postpone the payment to the Commissioner of the amount of the estimated costs beyond the said period of thirty days and that the said practice would be inconsistent with the provisions of rule 500-A. We are of the opinion, however, that the effect of the practice is to determine the amount which is payable under sub-rule (ii) of rule 500-A as and by way of the balance of purchase price and it is only that amount so determined which is payable within thirty days and to the non-payment whereof within that time the provision of re-sale under sub-rule (iv) is attracted. In other words, the quantum or the amount to which sub-rule (ii) applies would, by reason of the practice, be the balance of the purchase price as otherwise ascertained, reduced by the estimated amount of costs. The said practice is, therefore, not repugnant to any provision contained in sub-rule (ii) or sub-rule (iv) of rule 500-A. 30 I t wall also contended on behalf of the appellant that the amount of Rs. 75,000 as the estimated costs is exorbitant. Now the word "exorbitant" is vague. This contention was not raised in the affidavit in support of the present Chamber Summons. It was, as a matter of fact, not raised even before the Commissioner. Mr. Thakkar stated that this point was not even argued before the learned Judge. This statement of Mr. Thakkar has not been contradicted on behalf of the appellant. It has certainly not been made a ground in the Memorandum of Appeal. After all, the correctness of the estimate is a question of fact. Mr. Thakkar stated that in the absence of a dispute raised by the appellant in this connection, the first respondent did not place on record the necessary material to support the estimate of Rs. 75,000. It has certainly not been made a ground in the Memorandum of Appeal. After all, the correctness of the estimate is a question of fact. Mr. Thakkar stated that in the absence of a dispute raised by the appellant in this connection, the first respondent did not place on record the necessary material to support the estimate of Rs. 75,000. As an example, be pointed out, as stated earlier, that the first respondents costs of defending a suit in this Court as a mortgagee have been made costs in the present suit out of which this appeal arises. Mr. Thakkars grievance is justified because the appellant should have disputed the correctness of the amount of estimated costs before the Commissioner or at least before the learned Judge and as the appellant has not done so, the point cannot be allowed to be argued for want of necessary material before the Court. But we do not rest content only at that. We have made a rough estimate ourselves. As it is the mortgagee who has to furnish funds to the Commissioner for the costs of the sale and the mortgagor has not at that stage to put his hand in his pocket for that purpose, the mortgagor always desires that the Court should give widest publicity to the intended sale. Of course, if it was the mortgagor who had to foot the bill, his tune would have been different. The mortgagor has always been a favoured litigant. if one may use that phrase, of all Courts, and quite rightly, because a mortgagor, being a debtor, needs protection against any improper tactics by his mortgagee. The Court, therefore, first to prevent any unfairness resulting to the mortgagor leans a little in favour of the mortgagors demand when the property is to be advertised for sale, and particularly when a large property like the one concerned in this appeal is to be sold. It is well known in Bombay that if an advertisement appears in a newspaper like The Times of India, the costs of advertisements themselves are comparatively much larger than what they would be if the advertisements were to be published in some other newspaper. The costs of infructuous sales thrown away. which should not be Confused with the costs of the sale which are larger, used to be estimated and ordered by Chamber Judges at between Rs. 750 to Rs. The costs of infructuous sales thrown away. which should not be Confused with the costs of the sale which are larger, used to be estimated and ordered by Chamber Judges at between Rs. 750 to Rs. 1,000 till about five or seven years ago. Because of diverse reasons these costs of sale thrown away are now being estimated at between Rs. 1,500 to Rs. 2,500, depending on diverse factors like the newspapers in which the advertisements are inserted etc. etc. There has been a progressive increase in such costs. Costs of nineteen sales have to be estimated on that basis. Moreover, it is common ground that because of the long period of 21 years having elapsed between the date of the decree absolute for sale and the 19th sale, the Commissioner of this Court had obtained Valuation Reports for fixing the reverse bids on two occasions and the Commissioners records show that he has paid Rs. 6,000 to the valuer for each of the two Valuation Reports. In addition, the Commissioner himself must have spent additional amounts for diverse purposes such as, for example, for getting the Particulars and Conditions of Sale printed, etc. To these costs must be added the costs of the lawyers representing the first respondent at the various meetings held before the Commissioner and for attending at the auction sale. All of such costs are being allowed in taxation to a mortgagee-decree-holder according to the scales of fees prescribed for that purpose. To that must be added the first respondents costs of the mortgage suit and the other suit of which costs have been made costs in the former suit. Taking into account all these costs which the first respondent as the mortgagee would be entitled to recover out of the mortgage security, i.e., the sale proceeds, we are prima facie satisfied, only on a rough estimate, that the estimate of Rs. 75,000 will, if at all, exceed the actual taxed costs by hardly any appreciable amount. To use the word "exorbitant" in this connection without even any material would, in our opinion, require rewriting of dictionaries relating to that word "exorbitant". 31. Mr. Thakkar had contended that if this Court did not uphold the deduction of the said sum of Rs. 75,000 will, if at all, exceed the actual taxed costs by hardly any appreciable amount. To use the word "exorbitant" in this connection without even any material would, in our opinion, require rewriting of dictionaries relating to that word "exorbitant". 31. Mr. Thakkar had contended that if this Court did not uphold the deduction of the said sum of Rs. 75,000 for estimated costs this Court should extend the time for making payment of the balance of the amount under sub-rule (ii) of rule 500-A. He pointed out that the deduction was made on the basis of an estimate by placing bona fide reliance on the said practice and that if that practice Is now not upheld by this Court for any reason, this case would be the first to so hold and that this Court should, because of that reason, in this case extend the time for paying that amount of Rs. 75.000 to the Commissioner. He contended that, if at all it be necessary, this Court might so extend the time even by imposing some conditions on the first respondent, such a. payment of interest from the date when that payment should have been made to the Commissioner till such time as this Court may extend for making such payment. The appellant countered this contention by saying that in view of the provisions of rule 500-A if the first respondent at all wanted to apply for extension of time, the first respondent itself should have taken out the necessary proceeding containing such an application, that the first respondent cannot do so in the matter of the present Chamber Summons which is taken out by the appellant for challenging the validity of the sale and that the first respondent has, as a matter of fact, not made even in the matter of this Chamber Summons any such application before the learned Judge and has in any event not placed any material before this Court in support of its application for extension of time. Now sub rule (ii) of rule 500-A contains the provision for extension of time. Rule 500-A or for the matter of that no rule in the Original Side Rules, contains a provision which would require that in all such cases for extension of time it would be the first respondent who would be under an obligation to itself apply for extension of time. Rule 500-A or for the matter of that no rule in the Original Side Rules, contains a provision which would require that in all such cases for extension of time it would be the first respondent who would be under an obligation to itself apply for extension of time. In other words, even in a proceeding taken out by the mortgagor, the mortgagee can, of it is necessary as and by way of defending against the relief asked for in that proceeding by the mortgagor, request the Court to extend the time. It is true that this point was not raised before the learned Judge, nor is there any material contained in the affidavits filed on behalf of the first respondent in the matter of the said Chamber Summons. So far as the material is concerned, however, the only ground relied upon by Mr. Thakkar is a bona fide reliance on the existence of the said practice. No other material having been relied upon, we do not see why, if necessary, Mr. Thakkar cannot make such an application. It is true that under rule 500-A it is the Chamber Judge who can grant such extension of time. It was contended on behalf of the appellant that this contention not having been raised before the Chamber Judge and the Chamber Judge not having considered or made any order either way in that respect, the extension of time was not the lis before the Chamber Judge and is certainly not the lis in the matter of this appeal. It is, however, pertinent to note that the learned Chamber Judge dismissed the Chamber Summons and it was, therefore, not necessary for him to consider the question of extension of time. We are of the opinion that the discretion which rule 500-A vests in the Chamber Judge is also available to this Court when hearing an appeal against the order of the Chamber Judge. An appeal is a continuation of the suit or proceeding out of which the appeal arises. If it was necessary, we would have entertained this application of the first respondent and proceeding to consider whether such extension of time should be given to it or not. An appeal is a continuation of the suit or proceeding out of which the appeal arises. If it was necessary, we would have entertained this application of the first respondent and proceeding to consider whether such extension of time should be given to it or not. It was contended on behalf of the appellant that the provisions of sub-rules (i) and (ii) of rule 500.A being mandatory, time for making the payment of the balance of the purchase price cannot be extended after the expiry of the prescribed period of thirty day. This argument completely ignores the provision of rule 310 of the Original Side Rules which reads as under: "The Court or a Judge shall have power to enlarge or abridge the time appointed by these rules, or fixed by any order, for doing any act or taking any proceedings, upon terms (if any) as the justice of the case may require, and any such enlargement may, ordered although the application for the same is not made until after the expiration of the time appointed or allowed." The power to extend time under rule 310 is very wide. The rule does not provide that time can be extended only before the expiry of the prescribed time. The only limitation is such as would exist when a Court exercises its judicial discretion. It is, however, unnecessary for us to extend time a8 requested on behalf of the first respondent, in view of the conclusion which we have reached. 32. We have earlier stated that the mortgagor is in a sense a favoured litigant with Courts because he needs protection of the Court against any possible unfair advantage being taken against him by his mortgagee. The contentions raised on behalf of the mortgagor in this case, however, make us feel that it cannot be a universal rule and there can be some cases where it is the mortgagee who needs protection against the mortgagor. This case appears to be one of such cases. The reason why the mortgagor wants to cause delay does not require super intelligence to find it out. The reason is that the decree of 1949 provides for payment of interest subsequent to passing of the decree absolute for sale only at the rate of four per cent. per annum. The rates of interest have since then been continuously rising. The reason why the mortgagor wants to cause delay does not require super intelligence to find it out. The reason is that the decree of 1949 provides for payment of interest subsequent to passing of the decree absolute for sale only at the rate of four per cent. per annum. The rates of interest have since then been continuously rising. Even the Central and State Governments are today borrowing at the rate of about 5 1/2 per cent. per annum and under the Bombay Moneylenders Act the rate of interest payable on secured loans has been twice raised from 6 per cent. per annum to 9 per cent. per annum and from 9 per cent. per annum to 12 per cent. per annum. 33. The appellant has failed and we, therefore, dismiss the appeal with costs. We see no reason why the costs should not follow the event. The costs of the appeal of the first respondent and the third respondent to be tacked on to their respective mortgage claims. 34. The Notice of Motion is also dismissed with costs. The costs to be costs in the appeal. 35. As Mr. Dhanuka states that the appellant wants to consider its position about the filing of an appeal to the Supreme Court, he applies that the confirmation of sale should not be ordered before the expiry of three weeks from today. In view of the application, we order that no order for confirmation of sale should be made before Monday the 29th March 1971. The appellant to expeditiously make an application, if any, for leave to appeal to the Supreme Court. Appeal dismissed : Notice of Motion dismissed.