BHAGWAT NARAIN SINGH Vs. SRINIVAS

JUDGEMENT

(1.) This appeal is against an order of the Subordinate Judge of Patna confirming a sale held in execution of a decree on September 13, 1935, at which the decree holder had himself purchased the property sold. The facts are these: On the very day when the property was sold the decree-holder auction-purchaser and the judgment-debt's jointly filed an application to the effect that the latter had paid Rs. 500 to the farmer towards satisfaction of the decree and that the parties had agreed that if the remaining decretal amount be paid by November 10, next the sale would be set aside and the auction purchaser would forego the five per cent, compensation which he was entitled to. In case of default in the payment as provided by the date fixed the sale would stand confirmed. The Court was closed on November 10 and re-opened on the 13th. It may be conceded and in fact has not been disputed, that a deposit of the decretal amount in Court on November 13, would have been within the terms of the agreement. The money was not, however, deposited even on that dale. Some explanations were offered on behalf of the judgment-debtors for this default, but they were not pressed either before the lower Court or before this Court. On the next day, that is on November 14, the judgment-debtors applied to the Court for a chalan to deposit the amount. There was, for some reason or other which is not necessary to investigate, some delay in passing the chalan by the Court and it was not made over to the judgment- debtors till November 20, 1935, on which date the money was deposited in Court. The delay in depositing the money between November Id, when the chalan was applied for a November, 20, when the money was actually deposited is immaterial, as on behalf of the judgment-debtors the case has been argued on the assumption that there was a default on their behalf at least on November 13, when the Court re-opened and on which date the money could have been deposited. The deposit on November 20, was accepted at the risk of the judgment debtors and when the matter was taken up by the Court it held that the deposit was not within the terms of the agreement, and that it had no power to extend the time of payment as agreed to between the parties and accept the deposit beyond the time so fixed. It confirmed the sale. It is against this order that the present appeal has been preferred. It was contended on behalf of the decree-holder auction-purchaser that no appeal lay as the proceedings before the learned Subordinate Judge were outside the scope of the Civil P. C. and there is no appeal unless it has specifically been provided. At most it might be said that the Court in allowing the parties to substitute an agreement in place of their legal rights was acting under its inherent powers. If this be the case, orders passed in such a proceeding are not open to appeal.

(2.) As to the merits of the appeal, Sir Sultan Almad has contended that the agreement between the parties, which was filed in Court en September 13,1935, immediately after the sale, should be treated as a pure contract between the parties and should be dealt with as such. It was, therefore, for the Court to decide whether the time fixed for payment was of the essence of the contract. He contended that under the circumstances of the case the Court should have held that the payment though actually made on November 20, was in effect on November 14 (the delay between the 14 and the 20 being due to the acts of the officers of the Court) and the Court should have also held that time was not the essence of the contract and that the payment made on November 14, was substantial compliance with the agreement between the parties, and the decree- holder auction-purchaser could not avoid it and the sale ought to have been set aside by virtue of that agreement. The ease was originally heard by a Division Bench of this Court, but considering the important issues raised, it asked that the case should be heard by a larger Bench.

(3.) The first question to be considered is whether the order of the learned Subordinate Judge, dated November 25, 1935, confirming the sale, is appealable. Now the proceeding before him may be looked upon from two points of view. On the one hand, it may be said that it was outside the scope of the Code. Once a sale has been held it can be set aside only on applications made either under Order XXI, Rule 89 or Rule 90 or Rule 91. There is no question of there being any application under Rule 90 or Rule 91, and strictly speaking there was no application under Rule 89 also. That rule contemplates an application for setting aside a sale within 30 days of it as prescribed in Art. 166, Limitation Act. If such an application be made within the time and the decretal amount and compensation be deposited in Court within 30 days of the sale, the sale has to be set aside. In this case though there was an application within 30 days of the sale, the deposit was not made and was not to be made within the prescribed time but was to be made under the agreement of the parties on a later date fixed by them. Therefore, the proceeding was outside the scope of Order XXI, Rule 89, and the Court in allowing the parties to substitute a procedure in lieu of one prescribed by law was acting under its inherent power and the order passed in such a proceeding is not appealable. On the other hand, as was pointed out by Mitter, J. in Banga Chandler Mozumdar V/s. Nand Kumar Mozumdar 40 C.W.N. 1402 : I.L.R. (1937) 1 Cal. 142, where a Court has general jurisdiction, the parties to a proceeding can by agreement adopt a different procedure quite contrary to the ordinary cursus curiae and the Court is bound to give effect to such an agreement His Lordship referred to two decisions of the Privy Council in which this principle was laid down. They are Henry Peter Pisani V/s. Her Majesty's Attorney-General (1874) 5 P.C. 516 : 30 L.T. 729 : 22 W.R. 900 and Sadasiva Pillai V/s. Ramalinga Pillai 15 B.L.R. 383 : 21 A. 219 : 24 W.R. 193 : 3 Sar. 519 (P.C.). In the former case it was held that: The departure from an ordinary procedure is permissible unless there is an attempt to give the Court jurisdiction which it does not possess or something occurs which is such a violent strain upon its procedure that it puts it entirely out of its course, so that a Court of Appeal cannot properly review the decision. Such a departure has never been held to deprive either of the parties of the right of appeal.