Lachmi Ojha vs Ram Ran Bijay Prasad Singh and Others

James, J.—In this case a holding was brought to sale in execution of a rent decree on May 7. On May 23, the judgment-debtor made a deposit u/s 174, Bengal Tenancy Act, of the amount due under the decree, and of a sum which purported to represent the proportion of the purchase money which he was also required to deposit if the sale was to be set aside. The deposits were accepted in the office of the Munsif and in due course the Munsif made an order setting aside the sale. It was subsequently discovered that the amount deposited for the benefit of the auction-purchaser was short by something over 12 annas of the requisite amount and the decree-holder moved the Munsif to rescind his order annulling the sale. The Munsif, finding that the judgment-debtor had been lulled into security by the action of the predecessor in accepting the insufficient amount, declined to set aside the sale and permitted the judgment-debtor to make good the deficit, relying upon the decision of this Court in Dildar Ali v. Kusum Kumari 71 Ind. Cas. 925 : A I R 1924 Pat. 25 B : 4 P L T 642. The auction-purchaser has applied for revision of the order setting aside the sale on the ground that this order was made in the illegal exercise of jurisdiction, since the executing Court had no power to make the order unless the judgment-debtor had strictly complied with the provisions of Section 174, Bengal Tenancy Act. The case originally came for hearing before a single Judge of this Court, who referred it to a Division Bench, being doubtful regarding the authority to be attached to certain decisions of single Judges of this Court which would favour the view taken by the Munsif.

The question came before the Calcutta High Court in 1891 in Ugrah Lal v. Radha Pershad Singh 18 C. 255, in a case in which the amount had been calculated in the office after notice to the decree-holder whereon Sir Comer Petheram observed that the amount so calculated and settled by the officer of the Court had been settled as the amount payable u/s 174, and that when that amount had been paid into Court, an order to set aside the sale must be made by the Court as a matter of right. In 1897 the case of Abdool Latif v. Jadub Chandra 25 C. 218 same before the Calcutta High Court. In that case the amount paid in was short by 9 pies; but there was non specific prayer that the sale might be set aside. Subsequently after the period of limitation when the auction-purchaser applied for confirmation of sale, the judgment-debtor prayed that the sale might be set aside; but it was found that the amount deposited was short by 9 pies. The late Mr. Ameer Ali decided that the sale ought to have been set aside, pointing out that as a matter of practice the calculation of the amount due was made in the Munsif''s office and that after the deposit was made, it was the duty of the ministerial officer dealing with the chalan to examine it and check its correctness; and he considered that it would be grievous in the circumstances to hold that the judgment-debtor was not entitled to have the sale set aside when a deficiency of three farthings was discovered in the amount deposited.

The ground on which the executing Court in that case had refused to set aside the sale was that no separate application had been made for that purpose. Macpherson, J., concurring in the judgment of Ameer Ali, J., with some reservations, remarked that the deposit of the amount should be regarded as a sufficient application and that the decision of the lower Courts could not be supported on the ground on which it rested. It is to be observed that in that case the amount of the deficit was very trivial, a fact on which Ameer All, J., commented, though it was not on the triviality of the deficit that the decision was based. In 1898 another case of a similar nature came before the Calcutta High Court in Makbool Ahmed v. Bale Sabhan Chowdhry 25 C. 609. Ghose, J. there maintained the order setting aside the sale although the sum equal to 5 per cent, of the purchase money had not been deposited; but in that case the judgment-debtor had formally applied to the office of the Munsif for the purpose of ascertaining the exact sum which he had to pay and an account had been prepared for him which was signed by the Munsif. But it is to be observed that this amount was fixed by the Munsif in the presence and with the assent of the Pleaders of both parties.

The question was considered by a Pull Bench of the Calcutta High Court in Chandi Charan Mandal v. Banke Behari Lals 26 C. 449 : 3 C W N 283 (F. B.), case u/s 310A, Civil Procedure Code. In that case the deposit had been made in accordance with a information given by some ministerial officer of the Court; but the amount deposited was less than that required by law. It was held that the sale could not be set aside, Maclean, C. J., remarking that different considerations might arise if the Court in the presence of the parties had by an order fixed the amount, held that it would not avail the judgment-debtor that he relied on information given by some officer of the Court. He pointed out that it could only be the duty and within the province of a ministerial officer to give such information in a case in which the judgment-debtor had applied in accordance with the rules which govern applications for information Macpherson, J., who concurred in this decision had been a party to the decision in Abdool Latif Munshi v. Jadub Chandra Mitter (3). He remarked that it was not necessary to consider whether that case had been correctly decided because that was a case u/s 174, Bengal Tenancy Act, though it is difficult to see why the principles to be applied in testing the validity of a deposit made under Order XXI, Rule 89 should not generally apply when a deposit is made u/s 174, Bengal Tenancy Act.

The matter came before a Division Bench of this Court in Sarjoo Prasad v. Nannoo Rai 35 Ind. Cas. 779 : A I R 1916 Pat. 290 : 1 P L J 459 : 3 P L W 48. In that case the judgment-debtor had ascertained from an officer of the Court the amount due under the decree and had made the deposit, but he had omitted to deposit any sum to cover the five per cent, of the purchase money payable to the auction-purchaser. The Munsif set aside the sale; but it was held by the High Court that the order setting aside the sale was without jurisdiction and that it must be set aside. The learned Judges remarked that Ugrah Lai v. Radha Prasad Singh 18 C. 255, and Abdul Latif Moonshi v. Jadub Chandra Mitter 25 C. 218 were no longer to be regarded as authorities on the question of deposits to be made u/s 174, Bengal Tenancy Act. They declined to consider the argument that the judgment-debtor had been misled by a mistake on the part of an officer of the Munsif''s Court, on the ground that no duty was cast upon the officer of the Munsif''s Court to give any information to the defendant for any purpose for which he might require it u/s 174. In Dilidar Ali v. Kusum Kumari (i) the judgment-debtor after obtaining erroneous information from a clerk made the deposit before limitation had expired whereupon the Munsif recorded the order:

Judgment-debtor deposited full decree money with costs and compensation; put up on the date fixed for orders,

which was a date subsequent to that on which limitation expired u/s 174. On that date it was found that the deposit was insufficient and on objection made by the decree-holder, the Munsif declined to set aside the sale. Adami, J., sitting singly, observed that the judgment-debtor could not protect himself by a mistake of the execution mohurrir, but he was protected by the fact that he had obtained an order from the executing Court recording the deposit of the full amount of the decree money and compensation. It was the duty of the executing Court before entering an order in the order-sheet that the full decretal amount had been deposited to satisfy itself what were the costs to be paid by the judgment-debtor and the Court had taken no trouble to find out what those costs should be before making the order. Owing to this neglect of duty, the petitioner was lulled into security and so prejudiced by the neglect of the Court to let him know that the amount deposited was insufficient and so he should be permitted to make good the deficit when the fact that his deposit was not sufficient was brought to his notice. In Gopinath Tewari and Another Vs. Hiraman Bibi, , the amount deposited by the judgment-debtor was short of the amount required; but the chalan had been passed by the sharistadar. Agarwala, J., held that the passing of the amount as correct by the sharistadar after scrutiny required by the rules did amount to a misleading of the judgment-debtor by an officer of the Court and that the sale should be set aside, relying chiefly on'' the decision in Rangini Sundari Dasya Vs. Hiralal Biswas and Another, , which does give some authority for the view that the passing of the chalan by the sharistadar relieves the judgment-debtor of responsibility; though that decision was also partly based on the fact that the judgment-debtor before he made the deposit had been misled by wrong information given by an officer of the Court on verbal application. I have myself, in a somewhat similar case to that of Gopinath Tewari and Another Vs. Hiraman Bibi, , accepted as authority the decision in Rangini Sundari Dasya Vs. Hiralal Biswas and Another, , but I think that the argument of Mr. Jayaswal must prevail that that decision ought not to be treated as authoritative in this Court, in face of the decision of the Division Bench in Sarjoo Prasad Missir v. Nannoo Rai 35 Ind. Cas. 779 : A I R 1916 Pat. 290 : 1 P L J 459 : 3 P L W 48.

It was there made clear that the law throws the obligation upon the defendant himself to ascertain for himself the amount he was to pay into Court; and that no notice should be taken of information given by officers of the Court otherwise than in accordance with the prescribed rules of the Court. In the present case the only acts prescribed by the rules which are cited on behalf of the judgment-debtor are acts subsequent to the deposit; the passing of the chulan under the account rules and the order of the Munsif accepting the deposit. In Sarjoo Prasad Missir v. Nannoo Rai 35 Ind. Cas. 779 : A I R 1916 Pat. 290 : 1 P L J 459 : 3 P L W 48, the deposit had been accepted in the accounts department and the Munsif had made an order setting aside the sale, although the amount deposited was deficient. In this case as in that case the passing of the chalan in the office was done before the expiry of the period of thirty days, and the order of the Munsif setting aside the sale was made shortly after the expiry of that period. In Sarjoo Prasad Missir s case 35 Ind. Cas. 779 : A I R 1916 Pat. 290 : 1 P L J 459 : 3 P L W 48, the judgment-debtor, in making his deposit, forgot that he had to deposit 5 per cent, of the purchase money; in the present instance he calculated incorrectly the amount which had to be deposited on that account. I doubt whether distinction should be made on that ground; the basis of the decision in Sarjoo Prasad Missir''a case 35 Ind. Cas. 779 : A I R 1916 Pat. 290 : 1 P L J 459 : 3 P L W 48, was that the judgment-debtor had not deposited the amount required by law, and I consider that we ought to be governed by the decision in that case, in which the facts were essentially similar.

As the learned Judge remarked in Sarjoo Prasad Missives ease 35 Ind. Cas. 779 : A I R 1916 Pat. 290 : 1 P L J 459 : 3 P L W 48, the money to be a valid deposit, and to give the Court jurisdiction to set aside the sale must be lodged in full within thirty days and not later. It cannot be said that the reason why the judgment-debtor made a deficient deposit is to be found in the fact that after the deposit was made, the sharishtadar and the Munsif did not detect the error. It is misleading to say that the judgment-debtor is lulled into security by the fact that the sharishtadar may have made a mistake, or that he is to be held to have made an adequate deposit because if the mistake had been detected in time, it might have been corrected in time. This is very different from the case in which the amount to be deposited has been fixed by an order of the Munsif made in the presence of the parties and with their assent; and the judgment-debtor cannot in my opinion be held to escape the consequences of making an insufficient deposit by the fact that after the deposit was made, the sharistadar and the Munsif themselves both made mistakes in treating it as if it were sufficient. I would, therefore, allow this application and set aside the order of the Munsif dated July 8, 1932, setting aside the sale. The auction-purchaser is entitled to his costs: Hearing fee two gold mohurs.

Macpherson, J.

I agree. It is the view to which I inclined in making (at some length) the reference to a Division Bench and the argument has resulted in confirmation of the view. If the period of thirty days from the date of sale allowed by Section 174, Bengal Tenancy Act, and by Order XXT, Rule 89, to the judgment-debtor for making the deposit in Court can be extended at all, is is only when the judgment-debtor has established that he has made a mistake and that that mistake is directly due to an act of the Court itself.