Asharfi Dhimar vs Muhammad Dindalal

Ross, J.—On the 16th of February 1924 a sale was held in execution of a decree for rent and the holding was purchased by the opposite party for Rs. 76. On the 13th of March 1924 the petitioner deposited in Court Rs. 59-0-6 under two chalans, the first in favour of the decree-holder showing, in its, original form, the deposit of Rs. 55-0-6 and the second in favour of the, auction-purchaser showing, in its original form, the deposit of Rs. 4. The total amount deposited was, therefore, Rs. 59-0-6. The amount of the decree waa, Rs. 55-0-6 and the compensation due to the auction-purchaser was Rs. 3-12-0. The chalans were subsequently altered, by what authority it does not appear with the result that the decree-holder''s chalan became one of Rs. 55-8-6 and the auction-purchaser''s chalan one of Rs. 3-8-0, annas 8 having been transferred apparently from the latter to the former. With these chalans the petitioner filed an application before the Court stating that he had to pay the amount of the decree and compensation and prayed that the chalans might be passed and the sale be set aside. On that day the Court Ordered chalans to issue to the judgment-debtor for depositing the decree money and costs with compensation as prayed for. On the 24th of March the order passed by the Munsif was that the decree money and costs with compensation had been deposited under chalans specified and that the sale should be set aside and the case dismissed on full satisfaction. Subsequently it was brought to the notice of the Court by the office that although the total amount due by the petitioner had been deposited, in act the distribution according to the: chalans in their final forms was incorrect, too much having been deposited in favour of the decree-holder and 4-annas too little in favour of the auction-purchaser. The Court then ordered on the 31st of March, 24, that is beyond the period of limitation prescribed by Section 174 of the Bengal. Tenancy Act, that 8 annas deposited under the decree-holder''s chalan should be transferred to the auction-purchaser. The auction-purchaser appealed to the District Judge against the order setting aside the sale and the learned District Judge has ordered an enquiry to be made info the alteration in the chalans and has directed that, if asthe result of the enquiry the Munsif finds that the judgment-debtor was responsible for the alteration then the sale must stand: but if he finds that there has been fraud committed then he is at liberty to pass final order in the case on the merits as would seem to him fit and proper.

The first point taken in this application by the judgment-debtor is that no appeal lay at the instance of the auction-purchaser to the District Judge. This contention is established by authority and is conceded by the learned Vakil for the opposite party. He contends, however, that if he succeeds on the merits, this is not the, casein which the Court should exercise its jurisdiction in revision, even if no appeal lay to the District Judge. This is a well-recognized principle and it is, therefore, necessary to look at the merits of the case. On the merits the contention on behalf of the petitioner is that the Court had accepted the deposit and set aside the sale and the money deposited was in fact more than sufficient to meet the requirements of Section 174; and it was for the Court to distribute the dues between the decree-holder and the auction-purchaser. It is pointed out that there is no rule requiring deposit to be made, by two separate chalans, and that the fact that the distribution actually made in the two chalans was slightly erroneous cannot affect the title of the depositor to have the sale set aside, when in fact the full amount due had been paid; and that it was for the office of the Executing Court to make the proper distribution between the parties.

The argument on behalf of the opposite party is that the judgment-debtor chose to make the deposit by two chalans and took the risk of error; that the deposit must be made in a form which makes the money immediately available to the person for whose benefit the deposit is made; and that the action of the learned Munsif in re-distributing the deposit after the period of limitation amounts to extending the time which he had no jurisdiction to do. Now the authorities that were cited for the proposition that the deposit must be made in a form immediately available have no application on their facts to the facts of the present case. The money was in Court and was immediately available; and the fact that some clerical process had to be gone through in the Court before the auction-purchaser could get his 4-annas does not bring the case within the principle of the decisions referred to of which the principal was Rahim Bux v. Nundo Lal Gossami 14 C. 321 : 7 Ind. Dec. 213. Nor, in my opinion, was time extended by the order of the 31st of March. The money was already in Court and the transfer of 8-annas from one chalan to the other was merely a clerical matter which had nothing to do with the extension of time. The deposit was made Within the time limited by law and the fact that some action had to be taken in the office to make the proper amount available to the auction-purchaser cannot, in my opinion, be treated as an extention Of time. Apparently the office of the Executing Court was in error and the judgment-debtor was misled as to the exact sums payable to the decree-holder and to the auction-purchaser respectively. But he had deposited the full amount required by law and his deposit had been accepted and the sale has properly been set aside.

The order of the 24th of March setting aside the sale was, in my opinion, a proper order and as no appeal lay at the instance of the auction-purchaser from that order, that order must be restored. The result is that the decision of the learned District Judge must be set aside and the order of the Munsif setting aside the sale restored. The petitioner is, entitled to the costs of this application; hearing-fee one gold mohur.