SYED MOHAMMAD ZAKIR-UD-DIN Vs. MOHAMMAD NASEM

JUDGEMENT

(1.) This is an application in revision by one Zakir-ud-Din who in execution of a money decree against the tenant judgment-debtor purchased the holding of that tenant after the same was sold and purchased by one Nasem in execution of a rent decree by the landlord against the same judgment-debtor on November 23, 1936. The petitioner paid the amount recoverable under the decree with costs to the decree-holder out of Court within thirty days of the date of sale and on December 21, 1936, that is to say, just within two days, before the expiry of thirty days from the date of sale, he applied to the executing Court to be allowed to deposit the compensation money due to the auction-purchaser Mohammad Nasem and upon that the learned Munsif ordered the issue of a chalan on December 22, 1936, but on an objection filed later by Mohammad Nasem that the deposit was not in accordance with the provisions of Section 174, Bengal Tenancy Act (the money due to the decree-holder not having been deposited in Court,), the learned Munsif "on seeing the case-law in Raghunandan Pandey V/s. Garju Mandal 6 P.L.T. 795 : 91 Ind. Cas. 217 : A.I.R. 1925 Pat. 525 : 4 Pat. 718 : (1925) Pat. 183 and onwards" decided by his order dated March 15,1937, that the deposit was not in compliance with the above provisions of the Bengal Tenancy Act and he, therefore, ignored it and proceeded to confirm the sale. The present revision is against this order.

(2.) A large number of authorities have clustered round the question whether the Court has jurisdiction to set aside the sale where the provisions of Section 174, Sub-section (2) have been substantially (though not strictly) complied with. Various authorities have been considered at great length in a recent decision of this Court in Hanuman Singh V/s. Baijnath Prasad Singh 18 P.L.T. 409 : A.I.R. 1937 Pat. 537 : 4 B.R. 129 by my brother Rowland and he Las come to the conclusion that the Court has no jurisdiction to set aside the sale unless the amount of the decree with costs have been actually deposited in Court along with the compensation to the auction-purchaser. With the profoundest respect to the learned Judge, I do not agree with his conclusion for the reasons given below.

(3.) Section 174 (1) contains the provision which enables the judgment-debtor to have the sale set aside on his depositing in Court for payment to the decree-holder the amount recoverable under the decree with costs, and for payment to the purchaser a sum equal to live per cent, of the purchase money. It is to be noticed that the words used are the amount recoverable under the decree with costs" and not "the amount of the decree including the costs decreed" as are to be found in Section 170 (2). Again, the deposit is to be made for payment to the decree- holder and not for any other purpose. Where the decree-holder puts in a petition or tells the Court orally that he has received the amount due to him under the decree and for which the sale was held, in my opinion, it will be taking a very narrow view of the section, if the judgment-debtor was still required to deposit that money; and, if the money was indeed deposited by the judgment-debtor, it could not be withdrawn by the decree-holder because he has already received the money, and he has so stated to the Court and the result would be that the judgment-debtor would be forced to put in the money and then take it back himself, which appears to be a position which was never contemplated by the Legislature. The object of the law seems to be that in a summary proceeding for setting aside the sale under the provisions of Section 174, the Court should not be required to embark upon an enquiry whether the amount due had in fact been paid to the decree-holder. Where the decree-holder admits that he has received the amount due to him within 30 days of the date of sale, the requirements of the section which insist upon a deposit only "for payment to the decree-holder" are satisfied and then there is no "amount recoverable under the decree with costs."