GOPINATH TEWARI Vs. HIRAMAN BIBI

JUDGEMENT

(1.) This is an application by the judgment-debtors against an order of the District Judge of Shahabad confirming a decision of the Additional Subordinate Judge of Arrah, rejecting an application for setting aside an execution sale. The petitioners property having been sold in execution of a decree against them, they applied on 11 April 1932, to set aside the sale on the deposit required by Order 21, Rule 89, Civil P.C., being made. The last date on which the deposit could have been made for the purpose of setting aside the sale was 12 April 1932. In their application the petitioners stated that they had borrowed a sum of Rs. 3,500 on a mortgage for the purpose of paying the decretal amount and the compensation, and they requested that the amount to be deposited might be intimated to them and a challan given to them.

(2.) On the same day the Court passed the following order: On judgment-debtor's petition let challan be issued to deposit the decree money with compensation. It appears that in accordance with that order a challan was in due course issued to the petitioners on the 12th. The first part of the challan appears to have been filled up by the petitioners and stated the amount to be deposited. An entry on the back of the petition shows that the amount to be deposited was calculated by a clerk of the Court's office. The amount mentioned was deposited by the petitioners within the period of limitation. The lower Court has held that the amount deposited was 7 annas short of the amount required to be deposited by Rule 89, Order 21, and has therefore declined to set aside the sale.

(3.) In revision against this order it has been contended by the learned Counsel for the petitioners that this case is covered by the decision of the Calcutta High Court in Rangini Sundari Dasya V/s. Hiralal Biswas . In that case the judgment-debtor applied to set aside the execution sale and deposited the amount which he had been informed by the execution clerk of the Court was the amount to be deposited under Order 21, Rule 89, Civil P.C. The challan was in due course passed by the sheristadar and the amount was deposited two days before the expiry of the period of thirty days; and the sale was set aside. Subsequently it was discovered, after the expiry of the thirty days, that the amount deposited was short of the amount that ought to have been deposited. The Court permitted the amount in deficit to be made good and set aside the sale.