1. The Petitioner seeks to revise the judgment of the Subordinate Judge. Narasaraopet in A. S No. 87 of 1964, confirming the Order of the District Munsif, Sattenapalli in E. A. No 281 of 1963 in O. S. No. 130 of 1962 that the application filed by the Petitioner (Judgment-Debtor) under Order XXI. Rule 89 of the Code of Civil Procedure cannot be entertained.
2. The learned counsel appearing for the petitioner contended that the petitioner (Judgment-Debtor) made an application for setting aside the sale in time by depositing a total amount of Rs. 1,023-88 P. which was more than the amount required for depositing under Or. XXI, Rule 89 of the Code of Civil Procedure and therefore the Order of the Subordinate Judge is liable to be set aside.
3. The Petitioner made an application for issue of a challan to deposit the amount and the Court accordingly issued a challan but while apportioning the amount, a sum oi Rs, 849-73 P. was, apportioned to the sale warrant amount and Rs. 2-90 P. as subsequent interest, Rs. 105 as commission payable to the auction purchaser and Rs. 66-25 P. as poundage. The exact amount payable under the sale warrant was Rs. 849-73 and therefore, he made an application for condoning the delay in paying the balance due towards sale proclamation amount on the ground that the aggregate amount paid by him was in excess of what was actually to be paid. The District Munsif before whom the application was made declined to condone the delay on the ground that there is no provision for condoning the delay or for apportioning the excess amount paid under another head toward? the amount payable under the head 'sale proclamation amount'. The Subordinate Judge to whom an appeal was preferred against the Order of the District Munsif, concurred with the finding given by the District Munsif and dismissed the appeal.
4. Mr. Subramanaya Reddi, the learned counsel appearing for the petitioner contended that the petitioner paid the amount correctly but a sum of Rs. 66-25 P. was apportioned towards poundage which amount could have been deposited even subsequently under Rule 203 of Civil Rules of Practice. The result of this apportionment of Rs. 66-25 P. towards poundage is, that an amount of Rs. 5/- was found less towards the commission payable to the auction purchaser was Rs. 110 but in the apportionment made by the Clerk of the Court he apportioned only Rs. 105/-. It is for this reason that the Courts below found that the deposit was not made in accordance with the provisions of Order 21. Rule 89 C. P. C. and therefore, the subsequent application made for payment of the balance cannot be entertained as there is no provision to condone the delay and receive the deficit amount.
5. Mr. Siva Prasada Rao, the learned counsel appearing for the respondent relying upon a decision of Happell, J. in Kalidasa Chetty v. Dodda Siddha Chetty, (1946) 2 Mad LJ 110-AIR, 1947 Mad 56 argued that even if there is a mistake in calculation the Court has no jurisdiction to receive the deficit amount if any after the expiry of the thirty days period prescribed under Order 21, Rule 89. C. P. C.
6. Happell, J., held that the delay cannot be excused either on the ground that the mistake was not that of the payer but of the clerk who received the lodgment schedule who should have pointed out the error or that the small deficiency which led to the delay should be excused on the principle of de minimis non curate lex or again on the ground that the amount paid towards poundage could have been appropriated towards the deficiency.
7. The facts of the present case are almost similar to the case cited. But the question is where the lodgment schedule is prepared by the Court Clerk and when there is no need at all to pay the poundage while depositing the amount under Order 21. Rule 89 C. P. C., and when the mistake it any in apportioning the amount is committed by the clerk, whether such a mistake committed by the Court or its clerk could be condoned or rectified. In a recent decision of the Supreme Court in Jang Singh v. Brit Lal, : 2SCR145 Hidayatulla J., who spoke for the Court observed as follows:--
'It is, no doubt, true that a litigant must be vigilant and take care but where a litigant goes to court and asks for the assistance of the Court so that his obligations under a decree might be fulfilled by him strictly, it is incumbent on the Court, if it does not leave the litigant to his own devices, to ensure that the correct information is furnished. If the Court in supplying the information makes a mistake the responsibility of the litigant, though it does not altogether cease, is at least shared by the Court. If the litigant acts on the faith of that information the Court cannot hold him responsible for a mistake which it itself caused. There is no higher principle for the guidance of the Court than the one that no act of Court should harm a litigant and it is the bounden duty of Courts to see that if a person is harmed by a mistake of the Court he should be restored to the position he would have occupied but for that mistake. This is aptly summed up in the maxim: 'Actus curiae neminem sravabit' (Para 6)'
8. It is on the strength of this decision that Mr. Subrahmanya Reddy argued that the mistake if any committed by the Petitioner in this case must be shared equally by the Court, as the Court clerk while apportioning the amount apportioned more than what was payable towards poundage which resulted in harm to the litigant It is not in dispute that the total amount payable for the application made under Order XXI, Rule 89 C. P. C., is Rs. 959-73 and that the petitioner did in fact deposit more than what was actually required for payment under Order XXI, Rule 89 C. P. C. It is, not denied that the execution clerk calculated the amount to be deposited and the Court, accordingly directed the issue of challan and that the petitioner paid the amount accordingly and ultimately it was realised that the deposit on account of the mistake committed by the execution clerk was short of Rs. 5/-towards payment of commission payable to the auction purchaser, Therefore, on the statement of facts made by the Court below the mistake if any, was committed by the Execution Clerk and the Court ordered the issue of a challan on the basis of particulars furnished by the Execution Clerk and therefore, it is the Court in supplying the information that committed the initial mistake and as such the Court cannot make the litigant (Petitioner) alone responsible for which the Court also is responsible. The fact, that the litigant should have exercised a little more diligence or care, is not the question for consideration and harm to the litigant should not occasion on account of any mistake committed by the Court. Therefore, having regard to the view expressed by the Supreme Court, I am unable to agree with the view taken by Happell. J.
9. In the result, the judgment and decree of the Subordinate Judge confirming the Order of the District Munsif are set aside and the petitioner is permitted to deposit the deficit amount within three weeks from the date of receipt of this order.
10. The revision is allowed accordingly but in the circumstances of the case without costs.