RANGINI SUNDARI DASYA Vs. HIRALAL BISWAS

JUDGEMENT

(1.) In my judgment, there is no second appeal in this case.

(2.) The appeal arises out of an application made by the judgment-debtor under Order 21, Rule 89, Civil P.C., for making a deposit of the amount necessary for setting aside the sale. She made a deposit of a certain sum of money which fell short by a few rupees of the requisite amount. It appears that the judgment-debtor's agent, the judgment-debtor being a pardanashin lady, asked the execution clerk, who as a matter of practice in the lower Courts, makes calculations in these matters, as to what sum she should deposit in order to have the sale set aside under that rule. The clerk gives evidence that under the directions of the sheristadar or the chief ministerial officer he made a calculation on the back of the execution petition filed by the decree-holder as to the amount requisite for making the deposit for setting aside the sale. The judgment-debtor's agent then by a challan made the deposit. Under Rule 20, Chap. 9 of the Courts General Rules and Circular Orders, Civil, it is the duty of the chief ministerial officer to see that the amount due from the person submitting the challan to the person to whom the amount is payable is correct. The chief ministerial officer passed the challan and it must be taken that he found that the amount entered therein as payable by the judgment-debtor for setting aside the sale under Order 21, Rule 89, Civil P.C., was correct. It is distinctly stated in, the challan that the amount was being deposited under that rule of the Civil Procedure Code for setting aside the sale. This money was deposited, two days before the expiry of 30 days as; required by the law. No mistake was, pointed out till the expiry of 30 days.

(3.) After the expiry of that date, the decree, holders pleader informed the Sheristadar that the amount fell short of the required amount. The judgment-debtor-deposited Rs. 787-13 as calculated by the execution mohurrir and passed by the sheristadar. On this objection being; pointed out to the sheristadar, he made another calculation which appears in red ink at the back of the execution petition on which the previous calculation was made in black ink. After making this fresh calculation, he found that Rs. 23-6 more was required to make up the sufficient amount for deposit under Order 21, Rule 89, Civil P.C. The judgment-debtor thereupon deposited the said amount but that was after the requisite period of 30 days. According to the strict provisions of the rule, the judgment-debtor cannot ask the Court for setting aside the sale as the full amount had not been deposited within the prescribed period of 30 days. The learned Munsiff set aside the sale under that rule. He stated all the facts and referred to Coke upon Littleton for the exercise of what he called the equitable powers of the Court. There was an appeal by the decree-holder and the learned Subordinate Judge has set aside the order of the Munsiff. Against that order this second appeal has been preferred.