BHARAT CHANDRA BERA Vs. RAJENDRA NATH GHOSE

JUDGEMENT

(1.) I have heard the learned advocates appearing for the parties in these cases at some length because I am of opinion that the questions I have to decide in these two Rules are of some importance. These two Rules have been obtained by the judgment-debtor in a proceeding for setting aside an auction sale held on 8-9-1952. The facts which are undisputed are as follows: One Nalini Bala Ghose obtained a decree for a sum of Rs. 291/4/- against the petitioner and that decree was put into execution in Money Execution Case No. 25 of 1952. The property of the judgment-debtor was brought to sale and it was purchased on the 8th September, 1952 by a stranger named Rajendra Nath Ghose. The Civil Court remained closed for the Puja holidays from 17-9-1952 upto 20-10-1952 and reopened on 21-10-1952. On that date the judgment-debtor petitioner filed an application under Order 21 Rule 89 of the Code of Civil Procedure for setting aside the sale by making necessary deposits. His case is that for the purpose of ascertaining the amount which he was required to deposit under Order 21 Rule 89, he engaged a clerk named Md. Ishaque who approached the execution clerk of the Court and learnt from him that the judgment-debtor was required to deposit a sum of Rs. 302-1-9 to be paid to the decree-holder and a further sum of Rs. 21/2/- to be paid to the auction-purchaser. On the following day, that is 22-10-1952, the judgment-debtor made the deposits by two challans bearing Nos. 1552 and 1553. Upon these deposits being made the sale was set aside by order No. 14 dated 3-11-1952. Against the order setting aside the sale the auction-purchaser filed a Miscellaneous Appeal before the District Judge which was registered as Misc. Appeal No. 766 of 1952. On 18-11-1952 the Execution Clerk detected that the amount which had been deposited by the judgment debtor fell short by another sum of Rs. 21/2/-. Thereupon the judgment-debtor filed an application on 19-11-1952 asking for permission to make the further deposit of Rs. 21/2/- and by Order No. 15 dated 19-11-1952 the executing Court ordered the judgment-debtor to deposit the amount provisionally and the amount was actually deposited on the following day by another challan. On 16-12-1952 the auction-purchaser Rajendra Nath Ghose raised objection to the acceptance of the further deposit made by the judgment-debtor. On 17-12-1952 the decree-holder Nalini Bala withdrew the decretal dues amounting to Rs. 302/1/9. By an order dated 17-1-1953, the learned Munsif vacated Order No. 14 by which the sale had been set aside. Thereafter the sale was confirmed by an order dated 24-1-1953. The Miscellaneous Appeal which had been filed by the auction-purchaser against the order setting aside the sale was allowed by the appellate Court by an order dated 23-4-1953. The judgment-debtor filed an appeal against the order confirming the sale and that appeal was Misc. Appeal No. 86 of 1953. By an order dated 11-7-1953 the Misc. Appeal filed by the judgment-debtor was dismissed. Then the judgment-debtor moved this Court against the order of dismissal of Misc. Appeal No. 86 of 1953 and obtained one Rule which is Civil Revision No. 2606 of 1953. The judgment-debtor also moved this Court under Section 115 against the order of the appellate court allowing the appeal of the auction-purchaser in Misc. Appeal No. 766 of 1952 which has given rise to Civil Revision No. 2663 of 1953.

(2.) The points involved in both the Revision Cases are the same and they are also between the same parties and accordingly they have been heard together.

(3.) The first question which requires consideration in this case is whether the petitioner can be said to have been misled by an act of the Court. If he was, he is entitled to relief, if he was not, the application for setting aside the sale cannot be accepted. On this question the Munsif held that as the information obtained by the petitioner was obtained by him surreptitiously, it cannot be said to be an information supplied by the Court. What is meant by the learned Munsif is this; according to Rule 590 of the Civil Rules and Orders any person may apply for information from the records and registers of any Court and Rule 591 states that ail the applications for information shall be made in the prescribed form to the Judge-in-charge of the District Record Room or some other officer designated by him for the purpose. Rule 598 lays down that surreptitious or gratuitous supply of information by any ministerial officer is strictly prohibited and considered as a serious offence, and further, no information which has to be applied for under these Rules should be supplied unless an application is made in the prescribed form with the usual searching fee and any ministerial officer violating the rule is liable to be severely dealt with. The learned Munsif evidently thinks that as the information in the present case was supplied in violation of Rule 598 of the Civil Rules and orders, it could not be treated as information supplied by the Court and upon that view he dismissed the petitioner's application for accepting further deposit. The Court of appeal below has upheld the decision of the Munsif on a different ground. It has held that the amount, which was required to be deposited by the petitioner under Order 21 Rule 89 of the Code of Civil Procedure was quite clear on a plain reading of the statute and even if the petitioner was supplied with wrong. Information by the execution clerk, he should have detected the mistake at once and his failure to do so amounted to negligence or laches on his part for which he cannot claim any relief. The appellate court has added a further reason. It has pointed out that even if the second deposit of Rs. 21/2/-which was made by the petitioner on 20-11-1952 be accepted, the total amount deposited by him would fall short by Rs. 7/13/- because it would not include the entire amount of poundage fee which was payable to the auction-purchaser.