S.C. Lahiri, J.
1. I have heard the learned advocates appearing for the parties in these cases at some length because I am of opinion that the questions I have to decide in these two Rules are of some importance. These two Rules have been obtained by the judgment-debtor in a proceeding for setting aside an auction sale held on 8-9-1952. The facts which are undisputed are as follows:
One Nalini Bala Ghose obtained a decree for a sum of Rs. 291/4/- against the petitioner and that decree was put into execution in Money Execution Case No. 25 of 1952. The property of the judgment-debtor was brought to sale and it was purchased on the 8th September, 1952 by a stranger named Rajendra Nath Ghose. The Civil Court remained closed for the Puja holidays from 17-9-1952 upto 20-10-1952 and reopened on 21-10-1952.
On that date the judgment-debtor petitioner filed an application under Order 21 Rule 89 of the Code of Civil Procedure for setting aside the sale by making necessary deposits. His case is that for the purpose of ascertaining the amount which he was required to deposit under Order 21 Rule 89, he engaged a clerk named Md. Ishaque who approached the execution clerk of the Court and learnt from him that the judgment-debtor was required to deposit a sum of Rs. 302-1-9 to be paid to the decree-holder and a further sum of Rs. 21/2/- to be paid to the auction-purchaser. On the following day, that is 22-10-1952, the judgment-debtor made the deposits by two challans bearing Nos. 1552 and 1553. Upon these deposits being made the sale was set aside by order No. 14 dated 3-11-1952. Against the order setting aside the sale the auction-purchaser filed a Miscellaneous Appeal before the District Judge which was registered as Misc. Appeal No. 766 of 1952. On 18-11-1952 the Execution Clerk detected that the amount which had been deposited by the judgment debtor fell short by another sum of Rs. 21/2/-. Thereupon the judgment-debtor filed an application on 19-11-1952 asking for permission to make the further deposit of Rs. 21/2/- and by Order No. 15 dated 19-11-1952 the executing Court ordered the judgment-debtor to deposit the amount provisionally and the amount was actually deposited on the following day by another challan. On 16-12-1952 the auction-purchaser Rajendra Nath Ghose raised objection to the acceptance of the further deposit made by the judgment-debtor. On 17-12-1952 the decree-holder Nalini Bala withdrew the decretal dues amounting to Rs. 302/1/9. By an order dated 17-1-1953, the learned Munsif vacated Order No. 14 by which the sale had been set aside. Thereafter the sale was confirmed by an order dated 24-1-1953. The Miscellaneous Appeal which had been filed by the auction-purchaser against the order setting aside the sale was allowed by the appellate Court by an order dated 23-4-1953. The judgment-debtor filed an appeal against the order confirming the sale and that appeal was Misc. Appeal No. 86 of 1953. By an order dated 11-7-1953 the Misc. Appeal filed by the judgment-debtor was dismissed. Then the judgment-debtor moved this Court against the order of dismissal of Misc. Appeal No. 86 of 1953 and obtained one Rule which is Civil Revision No. 2606 of 1953. The judgment-debtor also moved this Court under Section 115 against the order of the appellate court allowing the appeal of the auction-purchaser in Misc. Appeal No. 766 of 1952 which has given rise to Civil Revision No. 2663 of 1953.
2. The points involved in both the Revision Cases are the same and they are also between the same parties and accordingly they have been heard together.
3. The first question which requires consideration in this case is whether the petitioner can be said to have been misled by an act of the Court. If he was, he is entitled to relief, if he was not, the application for setting aside the sale cannot be accepted. On this question the Munsif held that as the information obtained by the petitioner was obtained by him surreptitiously, it cannot be said to be an information supplied by the Court. What is meant by the learned Munsif is this; according to Rule 590 of the Civil Rules and Orders any person may apply for information from the records and registers of any Court and Rule 591 states that ail the applications for information shall be made in the prescribed form to the Judge-in-charge of the District Record Room or some other officer designated by him for the purpose. Rule 598 lays down that surreptitious or gratuitous supply of information by any ministerial officer is strictly prohibited and considered as a serious offence, and further, no information which has to be applied for under these Rules should be supplied unless an application is made in the prescribed form with the usual searching fee and any ministerial officer violating the rule is liable to be severely dealt with. The learned Munsif evidently thinks that as the information in the present case was supplied in violation of Rule 598 of the Civil Rules and orders, it could not be treated as information supplied by the Court and upon that view he dismissed the petitioner's application for accepting further deposit. The Court of appeal below has upheld the decision of the Munsif on a different ground. It has held that the amount, which was required to be deposited by the petitioner under Order 21 Rule 89 of the Code of Civil Procedure was quite clear on a plain reading of the statute and even if the petitioner was supplied with wrong. Information by the execution clerk, he should have detected the mistake at once and his failure to do so amounted to negligence or laches on his part for which he cannot claim any relief. The appellate court has added a further reason. It has pointed out that even if the second deposit of Rs. 21/2/-which was made by the petitioner on 20-11-1952 be accepted, the total amount deposited by him would fall short by Rs. 7/13/- because it would not include the entire amount of poundage fee which was payable to the auction-purchaser.
4. Against these orders the petitioner has obtained the present Rule and Mr. Sinha appearing in support of the Rules has contended before me that the view taken by the Courts below as to the character of information supplied to the petitioner is not correct. He has invited my attention to four Division Bench judgments of this Court in the cases of Sheikh Fakir v. Beraj Mohini Dasi, 11 Cal WN 116; Karamali Molla v. Tamijuddin Molla, 32 Cal L J 12: (AIR 1920 Cal 392(1)); Rangini Sundari Dasya v. Hiralal Biswas : AIR1930Cal249 and Abdul Gafur Mulla v. Kalidhan Mondal : AIR1930Cal302 , in all of which it has been held that an information supplied on an oral application by a litigant is information supplied by the Court. In the case of Rangini Sundari Dasya : AIR1930Cal249 B. B. Ghose, and N. K. Bose, JJ. said as follows:
'It is true that the application was not made formally, that is, by written application. But it is well known that, as a matter of practice, the rule as regards making written applications for such a purpose as this is not rightly enforced. That it was not a hole and corner business is apparent from the fact that the Sheristadar made another calculation on the back of the execution petition'.
Similarly in the case of Sheikh Fakir, 11 Cal WN 116, Brett and Gupta JJ. pointed out that the deposit in that case was made by a Muktear who
'following the ordinary practice went to the executive mohurer of the Munsif's Court in order to ascertain from him the amount recoverable under the decree and apparently he ascertained what amount also was payable to the purchaser. The executive mohurer drew up an account on the back of the application in which he showed that Rs. 65 annas 5 were recoverable under the decree and that Rs. 12 ans. 13 was payable as what is called 'compensation' '.
5. So also in the other two cases of Karamali Molla, 32 Cal LJ 12: (AIR 1920 Cal 392(1) and Abdul Gofur Molla : AIR1930Cal302 it appears that the information upon which the amount was deposited was supplied by the execution clerk on the basis of an oral application by the agent of the judgment-debtor. In the case of Abdul Gofur Molla : AIR1930Cal302 , B. B. Ghose and S. K. Ghose, JJ., made the following observations:
'This matter of short deposits on account of mistake in calculation is not infrequent. What the parties usually do is to apply to some Court official to make the calculation as to the amount which it is necessary for them to deposit in order to set aside a sale either under Order 21 Rule 89 of the Civil Procedure Code or under Section 174 of the Bengal Tenancy Act. As a matter of practice and it is also to be found in this case a calculation is made on the back o the petition for execution presented by the decree-holder and the calculation is made with reference to the application. Then challans arc filed and those challans are passed by the Sheristadar according to the General Rules and Circular Orders, Civil, of this Court'.
I have no doubt upon these authorities that the fact that the information in the present case was supplied by the execution clerk upon an oral request by the petitioner's agent instead of upon an information slip does not make it any the less an information supplied by the Court. After all there is no doubt in the case before me that the petitioner would have got the same information even if he had asked for it by an information slip. The calculation upon which that information was supplied is written out on the back of the petition dated 8-9-1952 and I have no doubt that the petitioner would have got the same information even if he had filed an information slip. The information supplied could have been characterised as surreptitious or clandestine it the calculation made by the execution clerk had not appeared on the record. To make the point clear I should state that on 8-9-1952, the decree-holder filed an application for permission to bid at the sale. On the back of that application there is a calculation which runs as follows:
Rs.302-1-9 Rs.14-0-6 Rs.1-0-6 Rs.1-0-6
The execution clerk Benoy has been examined in this case and he has stated that this calculation was made by him on the back of the petition dated 8-9-1952, He, of course, stated at first that this was the calculation made by him on the second occasion but he later on stated that this was the first calculation that was made by him. Upon this evidence I have no doubt that this was the calculation made by the execution clerk Benoy Bhusan Das at the time of supplying the information to the petitioner.
6. Mr. Chatterjee appearing on behalf of the opposite party has placed strong reliance upon the decision of the Full Bench of this Court in the case of Chandi Churn Mondal v. Banku Behari Lall, ILR 26 Cal 449: 3 Cal WN 283. In that case also the judgment-debtor raised the plea that he had been misled by the information supplied by the officer of the Court. It did not appear in that case who the officer was or whether it was his duty or within his province to give such information. Upon those facts Maclean C. J. made the following observations:
'But, even if the respondent could prove what he suggests, that some information was given him as to the amount of the purchase-money and of the sum mentioned in the sale proclamation by some officer of the Court, and that he relied on this information, it would not avail him. He must show, at the least, that it was the duty and within the province of the court officer to give the information, and that it was incorrect'.
7. This Full Bench judgment was considered by all the Judges (Except those who decided the case of Karamali Molla, 32 CLJ 12: (AIR 1920 Cal 392(1)) who decided the cases relied upon by Mr. Sinha. In the case of : AIR1930Cal249 , B. B. Ghose, J., said as follows with regard to the Full Bench case.
'It was essential for the success of the judgment-debtor in that case that it should be established that he was prejudiced by the act of the court and that the mistake that was made was attributable to that act and Mr. Justice Jenkins was careful to point out that what constituted the act of the Court must depend upon the circumstances of each case'.
In the case before me there is no doubt as to the officer who supplied the information and there is also no doubt that it was not the causal act of an officer of the Court but it was a deliberate calculation made by the execution clerk whose duty it was to supply information of this description to the litigants.
8. it is true that the execution clerk in the present case acted in violation of Rules 590 and 591 and therefore he was liable to be dealt with under Rule 598 and it was open to the learned Munsif or to the District Judge to take departmental action against him under Rule 598. Speaking for myself, I do not at all encourage the supply of information except on information slips required to be filed under Rule 591 of the Civil Rules and Orders but in this case I cannot say that the fact that the information was supplied by the execution clerk without information slips deprived that information of its character of an information supplied by the Court. At any rate, such information has been treated as an information supplied by the Court in the Four Division Bench Judgments of this Court to which I have already referred and I must, accordingly, hold that the information in the present case though supplied irregularly was an information supplied by the Court and the petitioner was misled by that information.
9. The second point about this information and about the entry in the challan is that the Chief Ministerial Officer who is the Sheristadar in the present case failed to discharge his duty laid down by Rule 760 of the Civil Rules and Orders. That rule requires:
'The person desirous of paying in the money, having filed up the forms of chalan, shall present them to the chief ministerial officer of the Court mentioned in Rule 758. The latter shall then ascertain by a reference to the record of the case or register concerned, that the amount tendered is correct, and is due, from the person on whose account it is tendered, to the person to whom it is stated to be payable, and, after correcting the forms of chalan, if necessary, shall sign Part I'.
The Sheristadar has also been examined as a witness in this case. He has stated in his evidence that he asked the clerk concerned to verify the statement made by the petitioner with reference to the record and on his report he got the chalan passed but he did not himself verify the chalan amount with the records as required under Rule 760. The misfortune of the petitioner in this case is that he was not only misled by the wrong information which was initially supplied by the execution clerk but it was aggravated by the failure of his duty by the Sherisladar of the Court. If the Sheristadar had performed his duty properly on the 21st October, 1952 on which date he passed the chalan I have no doubt that the petitioner would have been spared the trouble and harassment of this protracted litigation, nor could the auction purchaser have the opportunity of challenging the right of the petitioner to have the sale set aside. In my opinion, the petitioner in this case has been prejudiced both by the mistake committed by the execution clerk in supplying the initial information and by the failure of the Sheristadar to perform his duty as laid down by Rule 760 of the Civil Rules and orders. This disposes of the reason given by the learned Munsif for rejecting the petitioner's application for setting aside the sale.
10. With regard to the reason given by the appellate Court that it was a very simple thing for the petitioner to ascertain the amount and that he had no reason to be misled by any information supplied by the execution clerk, I need only say that it is based on speculation. How could the petitioner ascertain the amount which was required to he deposited under Order 21 Rule 89 of the Code of Civil Procedure and how could he ascertain the amount specified in the proclamation of sale without getting an information from the execution clerk. If, of course, the petitioner were wellversed in law, he could read Order 21 Rule 89 and then apply for inspection of the records and make out the calculation for himself and deposit in Court for payment to the decree-holder the amount specified in the proclamation of sale and for payment to the auction-purchaser a sum equal to 5 per cent of the purchase-money. But it is idle to suggest that a layman could act with so much diligence and it is also idleto suggest that a layman could act with so much intelligence. I am, therefore, unable to share the view taken by the Courts below that the petitioner was not misled by an act of the Court.
11. The second reason given by the appellate Court raises a question of some importance and I am indebted to the learned advocates appearing for the parties for rendering valuable assistance to me in solving the second problem. Under the Civil Rules and Orders the judgment-debtor is liable to pay 2 per cent of the purchase money as poundage fee. Mr. Chatterjee appearing for the opposite party in the course of a very able argument has invited my attention to Rule 680 of the Civil Rules and Orders which provides that certain lees in the annexed schedule framed by the High Court under Section 20 of the Court-fees Act shall be charged. Article 7(b) of that schedule provides that when an order for the sale of property is issued a percentage or poundage on the gross amount realised by the sale upto the maximum of Rs. 1,000/- at the rate of 2 per cent shall be realised. This is what is known as the poundage fee. By Note 2 of the aforesaid rule it is provided that the poundage fee may be deducted from the earnest money or the purchase money, as the case may be, by the auction purchaser not being the execution creditor, before depositing the latter in Court' and by Clause (b) of Note 2 the percentage or poundage fee must be paid in Court-fee stamp by the auction purchaser as soon as his bid is accepted by the Court and the sale is completed. In the case before me the purchaser is a stranger. Therefore, under Note 2 which was introduced by notification dated 20-1-1942 the purchaser was entitled to deduct 2 per cent of the purchase money and pay it in court-fee stamp. As in the present case the purchase money was Rs. 700/-the auction purchaser had the right to deduct and I am informed that he did actually deduct a sum of Rs. 14/- and paid in cash a sum of Rs. 686/- and paid in court-fee stamp the balance of Rs. 14/-. Under Order 21 Rule 89 the judgment-debtor is required to deposit two amounts (i) a sum equal to 5 per cent of the purchase money and (ii) the sum specified in the proclamation of sale for the recovery of which the sale was ordered. This rule does not require the judgment-debtor to deposit the poundage fee which might have been paid by the auction-purchaser under Rule 246 of the Civil Rules and Orders which was issued on 20-1-1942. When a sale is set aside under Order 21 Rule 89 the entire purchase money including the amount deducted for payment of the poundage fee should ordinarily be refunded to the auction-purchaser. By Sub-rule (2) of Rule 246 the Court has been given power to direct an applicant for setting aside the sale under Order 21 Rule 89 to deposit the poundage fee and other costs before entertaining the application. Mr. Sinha appearing for the petitioner has contended that the judgment-debtor is not required to deposit the poundage fee under Order 21 Rule 89 and for that purpose he has relied upon the case of Gopal Chandra v. Gobardhan Chandra : AIR1938Cal523 where Derbyshire C. J. and B. K. Mukherjea J. held that under Order 21 Rule 89 of the Code of Civil Procedure it is not incumbent on the judgment-debtor to pay in the poundage fee as a condition precedent to the sale being set aside. In the case before me the property was sold for Rs. 700/- and therefore under the provisions of Order 21, Rule 89 the judgment-debtor was required hy Order 21 Rule 89 to deposit a sum of Rs. 35/- for payment to the auction-purchaser as compensation and the sum of Rs. 302/1/9 stated in the proclamation of sale as being due to the decree-holder. The poundage fee imposed by the Civil Rules and Orders amount to Rs. 14/- at the rate of 2 per cent upon Rs. 700/-. The deposit that was made by the judgment-debtor including the second deposit and leaving aside the amount due to the decree-holder is 2 X Rs. 21/2 : Rs. 42/4/-. If the amount due to the auction-purchaser as poundage fee is required to be deposited by the petitioner under Order 21 Rule 89 the deposit that was made by him falls short by Rs. 6/12/- but the appellate Court evidently included the other costs and came to the figure Rs. 7/13/-as being due from the judgment-debtor. In my opinion, distinction has to be made between the amounts which are required to be deposited by the judgment-debtor under Order 21 Rule 89 and other amounts which are required to be deposited by him under the provisions of the Civil Rules and Orders. The former has to be. deposited with the period of 30 days but there is no limitation for making the latter deposit. Mr. Chatterjee appearing for the opposite party has contended that in view of the amendment of Civil Rules and Orders in the year 1942 the decision in the case of Gopal Chandia Chandra : AIR1938Cal523 is no longer good law. I have carefully considered this contention. Gopal Chandra Chandra's case : AIR1938Cal533 was decided in the year 1938 when rule 246 of the Civil Rules and Orders was as follows;
'When a sale of immovable property is set aside under Order 21 Rule 89 or Section 174(1), B. T. Act, the Court may make an order for payment by the judgment-debtor or by the person at whose instance the sale is set aside, of the poundage fee and other costs, if any not covered by the proclamation of sale'.
Upon an interpretation of that rule, as it stood then, Derbyshire C. J. pointed out that the order of recovery of poundage fee could be made by the Judge who set aside the sale and in that way the judgment-debtor could be made to reimburse the auction-purchaser for any costs or poundage fee. Rule 246 as it now stands runs as follows :
246(1) 'when a sale is set aside under, Order 21, Rule 89 the entire purchase money including the amount deducted for payment of the poundage fee, should ordinarily be refunded to the auction purchaser'.
So far as this Sub-rule is concerned the opening line indicates that it applies to a stage after the sale has been set aside and the observations made by Derbyshire C. J. in Gopal Chandra Chandra's case : AIR1938Cal523 still hold good, that is to say, the judge who sets aside the sale can, order the judgment-debtor to pay the poundage fee and other costs. Sub-rule (2) of Rule 246 however, runs as follows:
'When application to set aside a sale is made under Order 21 Rule 89 C. P. C. the Court may direct one applicant to deposit the poundage fee and other costs before entertaining the application'.
12. The effect of this Sub-rule is not that the judgment-debtor should deposit the poundage fee within the period of limitation within which he is to make the deposit required by Order 21 Rule 89 but that the Court may require the judgment-debtor to deposit the poundage lee as a condition precedent to the consideration of his application. Suppose a judgment-debtor presents the application for setting aside the sale under Order 21 Rule 89 after making deposits required by that rule; it is open to the Court to say that it will refuse to consider that application on the merits or to grant the prayer made by the judgment-debtor unless the judgment-debtor deposits the poundage fee. That deposit may, however, be made either within the period of 30 days or beyond that period and the only penalty for not depositing the poundage fee is that the judgment-debtors application for setting aside the sale will not be taken up for consideration by the Court. Rule 246 of the Civil Rules and Orders was not framed by the Rule Committee of this Court as constituted under Section 123 of the Code of Civil Procedure and it cannot, therefore, have the effect of altering, or adding to the provision of Order 21, Rule 89. The only effect of that rule is that the Court may compel a judgment debtor to deposit the poundage fee on pain of his application for setting aside the sale not being considered before the deposit is made. For these reasons I am unable to hold that the decision-in Gopal Chandra Chanda's case : AIR1938Cal523 has in any way been affected by the amendment introduced in Rule 246 of the Civil Rules and Orders in the year 1942 and consequently I hold that it is open to the judgment-debtor to make the deposit of poundage fee after the expiry of the period of limitation within which he is required to make the deposit under Order 21 Rule 89. In the case before me there was no order by the Court requiring the judgment-debtor to deposit the poundage fee as a condition precedent to his application being taken up for consideration, presumably because, as has been pointed out by Mr. Chatterjee, the judgment debtor himself offered to pay the poundage fee as well as compensation by his chalans. I take that entry in the chalan to mean that the judgment-debtor is even now prepared to pay the poundage fee and that he would have paid it long ago if there had been no mistake in the information which had been supplied to him.
13. The third contention raised by Mr. Chatterjee appearing on behalf of the opposite party is that even the first deposit made by the judgment-debtor on the 22nd October, 1952 was out of time by one day and as such his application for setting aside the sale must be dismissed. This point was not raised by the auction-purchaser either before the Munsif or before the Court of appeal below and it had been raised for the first time in the third Court. If it had been a pure question of law, I could have allowed the auction purchaser to raise this point before me but it seems to me on the facts of this case that it is not a pure question of law. The facts which are relevant for a proper understanding of this point are these; the last date for making the application under Order 21, Rule 89 and' also for making the deposit required to be made under that rule was the 21st October, 1952 which was the date on which the Civil Courts reopened after the Puja holidays. The judgment-debtorfiled his application on that date and his chalan was also passed on that date. But it appears that the actual deposit was made on the following day,that is to say, 22nd October, 1952. Mr. Chatterjee argues that the deposit having been made beyond the period of limitation could not be accepted under the provisions of Order 21 Rule 92(2) which requires that the deposit under Order 21, Rule 89 must be made within the period of 30 days from the date of sale. From the chalans it is impossible for me to ascertain what were the circumstances which prevented the judgment-debtor from making the deposit on the 2lst October, 1952. It may be that the chalan was passed at a time when nodeposit could be accepted; it may be that the officer who was to accept the deposit left his office before time or it may be that the chalan was deposited onthe 21st October, 1952 after the time specified in Rule 755 of the Civil Rules and Orders and therefore it was credited on the following day. At any rate, this is a point which involves investigation into questions of fact and I am not prepared to allow the opposite party to raise that point for the first time before me. It is well know that if a party is prevented by an act of Court from making the deposit within the time allowed by law, he ought not to be made to suffer for it. If any authority is needed for this proposition I may refer to the case of Mahomed Akbar Zaman Khan v. Sukhdeo Pande, 13 Cal. L.J. 467.
14. For the reasons given above I would make both these Rules absolute and sot as do the orders passed by the Courts below and allow the petitioners' application under Order 21, Rule 89 of the Code ofCivil Procedure. But in view of all that has happened I should direct that the petitioner should deposit in Court for payment to the auction-purchaser a further sum of Rs. 16/12/- within a fortnight from the date of service of notice of arrival of records upon his Pleader. This amount has been calculated by me on the following basis. The auction-purchaser is entitled to a sum of Rs. 35/- as compensation under Clause (a) of Order 21, Rule 89 and a further sum of Rs. 14/- as poundage fee and I would add a sum of Rs. 10/- as costs incurred bv him. This would make a total of Rs. 59/-. Out of this the judgment-debtor has deposited Rs. 42/4/-leaving a balance of Rs. 16/12/-. If he deposits this amount within a fortnight of the service of notice of arrival of records upon his Pleader, the sale will be set aside and the petitioner will beentitled to all the costs in all the Courts, includingthe costs of this court, hearing fee being assessedat two gold mohurs for both the Rules. In case,however, he fails to make the deposit within thetime specified above, both these Rules will standdischarged with costs -- hearing fee being assessedat two gold mohurs for both the Rules.