LACHMI OJHA Vs. RAM RAN BIJAY PRASAD SINGH

JUDGEMENT

(1.) 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 under Section 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/s. 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.

(2.) 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 under Section 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/s. 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.

(3.) 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/s. 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.