1. Some property belonging to the applicants Tikamsingh and Jaipal Singh was sold in execution of a decree against them. The sale took place on 23rd August 1947. The judgment-debtors desired to have the sale set aside under Order 21, Rule 89, Civil P. C. For that purpose they had to deposit the decretal amount and five per cent. extra for payment to the auction purchaser, and to make an application for setting aside the sale on or before 22nd September 1947. It was the Court of the Sub-Divisional Officer, Koil, in which the deposit was to be made and to which the application was to be made. The Sub-Divisional Officer did not hold his Court either on 22nd September 1947, or on the following day. The money could not, therefore, be deposited in that Court on those two dates, nor could an application be made on those dates. A tender was, however, delivered by the judgment-debtors' pleader to some officer of that Court on 23rd September 1947 as appears from the order sheet of that date. The order sheet is, however, not signed by the Presiding Officer showing that he was not present in Court on that date. So that no orders could be passed upon it on 23rd September 1947. The tender was returned to the judgment-debtor's pleader on 24th September 1947, and the money was deposited that very day. An application for setting aside the sale was made not by the judgment-debtors but by Mt. Hirania, the mother of judgment-debtor Tikam Singh.
2. An objection was taken on behalf of the auction-purchaser that the deposit not having been made within time, the sale could not be set aside. The learned Sub-Divisional Officer stated in his order, that due to law and order work no Court was held on 22nd September 1947, or even on the following day, and, relying on a ruling of the Board of Revenue, he came to the conclusion that the judgment-debtors could not be held responsible for the delay in the making of the deposit and ordered the sale to be set aside.
3. This order has been reversed by the lower appellate Court. The lower appellate Court thought that the ruling of the Board of Revenue was inapplicable to the facts of the case. The lower appellate Court discovered another point against the judgment-debtors, namely, that no application for setting aside the sale was made by the judgment-debtors or by any person interested in the property that was sold by auction.
4. It is contended before me in this application in revision, that the lower appellate Court has erred on both these points. So far as the want of application on behalf of the judgment-debtors is concerned, learned counsel submits that the tender was itself an application required by Order 21, Rule 89, Civil P. C. The learned counsel is supported in his submission by two decisions of this Court. The first of these, Ramraj Singh v. Rabi Prasad 63 I. C. 140 (ALL.) is the decision of a learned single Judge, in which it was held that:
'..... the application to deposit the money and the penalty of five per cent. on the purchase money must be deemed to be an application not only for the deposit of the purchase money but also to have the sale set aside.'
This decision was followed by a Division Bench of this Court in Mahboob Khan v. Majid Husain : AIR1939All241 , where the observations quoted above were approved. These decisions are binding upon me, and following them I hold, that there was in this case an application such as is contemplated by Order 21, Rule 89, Civil P. C.
5. So far as the question of limitation is concerned, it is obvious that the judgment-debtors were prevented from taking the steps required by law within time on account of the fact that there was no sitting of the Court on 22nd September 1947, in other words, because the Court was closed on that day. Even if it be held, that the ruling of the Board of Revenue, relied on by the learned Sub-Divisional Officer, is inapplicable, I see no reason to consider why Section 4, Limitation Act should not apply to such a case, which provides:
'Where the period of limitation prescribed for any suit, appeal or application expires on a day when the Court is closed, the suit, appeal or application may be instituted, preferred or made on the day that the Court re-opens.'
In accordance with the provisions of this section the judgment-debtors were entitled to make the deposit and the application on the 23rd, or even on the 24th. I, therefore, find that the deposit and the application were not beyond time in this case. The decision of the Court below is erroneous on this point also.
6. It is contended by the learned counsel for the opposite party, that even granting that the decision of the lower appellate Court is erroneous, that Court has only committed an error of law and not an error of jurisdiction, and, therefore, this application in revision does not fulfil the requirements of Section. 115, Civil P. C.
7. I, however, find that the Court below has not only committed an error of law, but has also acted with material irregularity in the exercise of its jurisdiction. If the lower appellate Court had applied its mind to the question as to what has to be done in a case where a party is prevented from taking some step on account of the fact that the Court is not sitting on that date and come to a conclusion one way or the other, right or wrong, it would then perhaps be an error of law and not an error of jurisdiction. But a Court which does not apply its mind to such a situation, when it is its duty to consider it, certainly acts with material irregularity in the exercise of its jurisdiction, for it then omits to perform a function which it is its duty to perform, for a proper disposal of the case.
8. I, therefore, allow this application in revision, set aside the order of the lower appellate Court and restore that of the Court of first instance with costs throughout.