1. This appeal with the special leave of this Court arises out of executionof a decree for pre-emption passed in favour of the appellant Jang Singh. Bythe order under appeal the High Court has held that Jang Singh had notdeposited the full amount as directed by the decree within the time allowed tohim and his suit for pre-emption must therefore be ordered to be dismissed andalso the other proceedings arising therefrom as there was no decree of which hecould ask execution.
2. The facts of the case are simple. Jang Singh filed a suit for pre-emptionof the sale of certain lands against Brij Lal the first respondent (thevendor), and Bhola Singh the second respondent (the vendee) in the Court ofSub-Judge Ist Class, Sirsa. On October 25, 1957, a compromise decree was passedin favour of Jang Singh and he was directed to deposit Rs. 5951 less Rs. 1000already deposited by him by May 1, 1958. The decree also ordered that on hisfailing to make the deposit punctually his suit would stand dismissed withcosts. On January 6, 1958, Jang Singh made and application to the Sub Judge,Sirsa, for making the deposit of the balance of the amount of the decree. TheClerk of the Court, which was also the executing Court, prepared a challan induplicate and handed it over with the application to Jang Singh so that theamount might be deposited in the Bank. In the challan (and in the order passedon the application, so it is alleged) Rs. 4950 were mentioned instead of Rs.4951. Jang Singh took the challan and the application and made the deposit ofthe wrong balance the same day and received one copy of the challan as anacknowledgement from the Bank.
3. In May, 1958, he applied for and received an order for possession of theland. It was reported by the Naib Nazir that the entire amount was deposited inCourt. Bhola Singh then applied on May 25, 1958, to the Court for payment tohim of the amount lying in deposit and it was reported by the Naib Nazir on thatapplication that Jang Singh had not deposited the correct amount and thedeposit was short by one rupee. Bhola Singh applied to the Court for dismissalof Jang Singh's suit, and for recall of all the orders made in Jang Singh'sfavour. The Sub Judge, Sirsa, accepted Bhola Singh's application observing thatin pre-emption cases a Court had no power to extend the time fixed by thedecree for payment of the price and the pre-emptor by his failure to depositthe correct amount had incurred the dismissal of the suit under the decree. Heordered also the reversal of the earlier orders passed by him in favour of JangSingh and directed that possession of the fields be restored to the oppositeparty.
4. Jang Singh appealed against that order. The District Judge recorded theevidence of the Execution Clerk, the Revenue Accountant, Treasury Office andJang Singh. He also examined Bhola Singh. The learned District Judge held thatthe record of the case showed that on the day the case was compromised and thedecree was passed Jang Singh was not present and did not know the exactdecretal amount. The learned District Judge assumed that it was the duty ofJang Singh to be punctual and to find out the exact amount before he made thedeposit. He, however, held that as Jang Singh had approached the Court with anapplication intending to make the deposit to be ordered by the Court, and theCourt and its clerk made a mistake by ordering him to deposit an amount whichwas less by one rupee, Jang Singh was excused in as much as the responsibilitywas shared by the Court. The learned District Judge, therefore, held that thiswas a case in which Jang Singh deserved to be relieved and he came to theconclusion that Jang Singh was prevented from depositing the full amount by theact of the Court. He concluded 'thus the deposit made was a sufficientcompliance with the terms of the decree'. The order of the Sub Judge,Sirsa dismissing the suit was set aside.
5. Bhola Singh appealed to the High Court. This appeal was heard by alearned single Judge who was of the opinion that the decree which was passedwas not complied with and that under the law the time fixed under the decreefor the payment of the decretal amount in pre-emption cases could not beextended by the Court. He also held that the finding that the short deposit wasdue to an act of the Court was unsupported by evidence. He accordingly setaside the decision of the learned District Judge and restored that of theSub-Judge, Sirsa.
6. The facts of the case almost speak for themselves. A search was made forthe application on which the order of the Court directing a deposit of Rs. 4950was said to be passed. That application remained untraced though the DistrictJudge adjourned the case more than once. It is, however, quite clear that thechallan was prepared under the Court's direction and the duplicate challanprepared by the Court as well as the one presented to the Bank have beenproduced in this case and they show the lesser amount. This challan isadmittedly prepared by the Execution Clerk and it is also an admitted fact thatJang Singh is an illiterate person. The Execution Clerk has deposed to theprocedure which is usually followed and he has pointed out that first there isa report by the Ahlmed about the amount in deposit and then an order is made bythe Court on the application before the challan is prepared. It is, therefore,quite clear that if there was an error the Court and its officers largelycontributed to it. It is not doubt true that a litigant must be vigilant andtake care but where a litigant goes to Court and asks for the assistance of theCourt so that his obligations under a decree might be fulfilled by himstrictly, it is incumbent on the Court, if it does not leave the litigant tohis own devices, to ensure that the correct information is furnished. If theCourt in supplying the information makes a mistake the responsibility of thelitigant, though it does not altogether cease, is at least shared by the Court.If the litigant acts on the faith of that information the Courts cannot holdhim responsible for a mistake which it itself caused. There is no higherprinciple for the guidance of the Court than the one that no act of Courtsshould harm a litigant and it is the bounden duty of Courts to see that if aperson is harmed by a mistake of the Court he should be restored to theposition he would have occupied but for that mistake. This is aptly summed upin the maxim :
'Actus curiae neminem gravabit'.
7. In the present case the Court could have ordered Jang Singh to make thedeposit after obtaining a certified copy of the decree thus leaving it to himto find out the correct amount and make the correct deposit. The Court did notdo this. The Court, on the other hand, made an order and through its clerk prepareda challan showing the amount which was required to be deposited. Jang Singhcarried out the direction in the order and also implicit in the challan, to theletter. There was thus an error committed by the Court which the Court mustundo and which cannot be undone by shifting the blame on Jang Singh. To dismisshis suit because Jang Singh was also partly negligent does not exonerate theCourt from its responsibility for the mistake. Jang Singh was expected to relyupon the Court and its officers and to act according to their directions. Thathe did so promptly and fully is quite clear. There remains, thus, the wrongbelief induced in his mind by the action of the Court that all he had to paywas stated truly in the challan and for this error the Court must take fullresponsibility and it is this error which the Court must set right before thesuit of Jang Singh can be ordered to be dismissed. The learned single Judge ofthe High Court considered the case as if it was one of extension of time. Hereversed the finding given by the District Judge that the application made byJang Singh did not mention any amount and the office reported that only Rs.4950 were due. The learned single Judge exceeded his jurisdiction there. It isquite clear that once the finding of the District Judge is accepted - and itproceeds on evidence given by Jang Singh and the Execution Clerk - the onlyconclusion that can be reached is that Jag Singh relied upon what the Courtordered and the error, if any, was substantially the making of the Court. Inthese circumstances, following the well-accepted principle that the act ofCourt should harm no one, the District Judge was right in reversing thedecision of the Sub-Judge, Sirsa. The District Judge was, however, in error inholding that the decree was 'sufficiently complied with'. That decreecould only be fully complied with by making the deposit of Re. 1 which theDistrict Judge ought to have ordered.
8. In our opinion the decision of the learned single Judge of the High Courtmust be set aside. The mistake committed by the Court must be set right. Thecase must go back to that stage when the mistake was committed by the Court andthe appellant should be ordered to deposit the additional rupee for payment toBhola Singh. If he fails to make the deposit within the time specified by ushis suit may be dismissed but not before. We may point out however that we arenot deciding the question whether a Court after passing a decree forpre-emption can extend the time originally fixed for deposit of the decretalamount. That question does not arise here. In view of the mistake of the Courtwhich needs to be righted the parties are relegated to the position theyoccupied on January 6, 1958, when the error was committed by the Court whicherror is being rectified by us nunc pro tunc.
9. The appeal is, therefore, allowed. The appellant is ordered to depositRe. 1 within one month from the date of the receipt of the record in the Courtof the Sub-Judge, Sirsa. In view of the special circumstances of this casethere shall be no order about costs throughout.
10. Appeal allowed.