Kalidasa Chetty vs Dodda Siddha Chetty Another

Happell, J.—The petitioner admittedly complied with the provisions of Order XXI, Rule 89 in making a deposit to have a sale set aside,

except for the fact that by mistake he was Re. 1-4-0 short in the amount which he had deposited in respect of commission. The deficiency he

made up as soon as it was pointed out to him, but after the thirty days had expired. The learned District Munsiff excused the delay on the ground

that it was due to a bona fide mistake. But the learned District Judge of Coimbatore has taken the view that the District Munsiff had not jurisdiction

to excuse the delay.

For the petitioner I have been referred to cases decided by the Patna High Court and it has been argued that the delay can be excused either on

the ground that the mistake was not that of the payer but of the clerk who received the lodgment schedule who should have pointed out the error,

or that the small deficiency which led to the delay should be excused on the principle of de minimis non curate lex or again that the amount paid

towards poundage could have been appropriated towards the payment of interest, as the limitation of thirty days does not apply to the payment of

poundage. The last two contentions are not open to the petitioner in viewof the decision of a Bench of this Court in Kalinga Hebbra Vs. Narasimha

Hebbra, . In that case the deficiency was less than three annas. None-the-less it was held that it could not be condoned and that the amount that

had been paid towards poundage could not be appropriated to the payment in respect of the sale which was deficient. With respect I should not in

any case be able to follow the decision of the Patna High Court in Nanhu Prasad Singh Vs. Nandan Missir and Others, . The responsibility for

paying the correct amount, it seems to me, lies with the payer who wishes to have the sale set aside and not with the clerk who receives the

lodgment schedule. It has been suggested that Kalinga Hebbra Vs. Narasimha Hebbra, , is no longer binding in view of the amendment to Order

XXI, Rule 92. There is no force in this argument as the mistake which led to the depositor paying Rs. 1-4-0 too little in respect of interest was

clearly within his control.

In the result, therefore, the petition must be dismissed with costs of the first respondent.