Dhari Jena vs Gauranga Charan Sahu

Harries, C.J.—This is an application for revision of an appellate order passed by the learned District Judge of Cuttack upholding an order of the learned Munsif rejecting an application for setting aside a sale. It appears that the present petitioner''s property was sold in execution of a mortgage decree on 15th January 1936. Within thirty days of the date of the sale, the petitioner deposited in Court the entire decretal amount and compensation; but this deposit was not accompanied by any petition requesting the Court to set aside the sale. The chalan showing the deposit was put up before the learned Munsif on 17th February 1936 and it was noted in the order sheet that no petition for setting aside the sale had been filed.

On 20th February 1936, the learned Munsif passed an order that the sale could not be set aside as no petition for setting it aside had been presented to the Court. The sale was therefore confirmed.

On 29th February 1936, the petitioner made an application purporting to be u/s 151 and Order 21, Rule 89, Civil P.C., for reviewing the order of the learned Munsif. This application was heard in due course, and it was then suggested that the failure to make an application to set aside the sale was due to a pleader''s clerk, but eventually this point was not pressed.

The learned Munsif refused to interfere and his order was upheld by the learned District Judge. There can be no doubt that no written or verbal application was made to the Court when the decretal amount and compensation was deposited, and upon the findings of the Court below it is impossible for this Court to hold that such failure was due to any pleader''s clerk or to any error or failure on the part of any officer of the Court. The failure to present an application for setting aside the sale was apparently due to the petitioner''s ignorance of the provisions of law applicable to the case. It was contended in the Court below and has been contended in this Court that the depositing of the decretal amount together with compensation amounted to an application for setting aside the sale. In any event it is said that such an application must be implied from the very fact that the decretal amount and compensation was deposited.

This contention has been put forward on many occasions previously. In Raoji Baburao Vs. Bansilal Narayan Marwari, , a Bench of the Bombay High Court held that a sale could not be set aside in the absence of an application even though the full decretal amount had been deposited. The Court further held that it had no power u/s 115, Civil P.C., to interfere in such a case. In Mathura Prashad v. Ram Lal (1911) 9 IC 33, a single Judge of the Allahabad High Court came to the same conclusion. The same view was expressed by a single Judge of the Madras High Court in Venkatasubba Rao v. Narayana Rao AIR (1922) Mad 83. There is no Patna case precisely in point; but the case in Ramshivendra Narayan v. Awadh Bihary AIR 1923 Pat 159 supports the view which I have expressed.

There can be no question that there is a body of authority for the view held by the learned District Judge. The case is undoubtedly a very hard one, but that does not permit the Court to interfere where it has no power so to do. In my view no ground has been made out for interfering with the decision of the lower Appellate Court and accordingly I would dismiss this application and make no order as to costs.

Rowland, J.

I agree.