1. This is an appeal by the decree-bolder, who is also the purchaser at the sale held in execution of the decree, against an order setting aside a sale under Section 310A of the Code of Civil Procedure. It appears that after the sale had taken place, the judgment-debtor applied to the office of the Munsif for the purpose of ascertaining the exact sum that he had to pay in satisfaction of the decree in accordance with the provisions of Section 310A; and an account was prepared by the execution moburir shewing the amount payable by the judgment-debtor, and that account was signed by the Munsif. The judgment-debtor paid in the amount which was shewn in the account, and the Munsif subsequently set aside the sale in accordance with Section 310A.
2. It has been contended, however, by the learned Counsel for the appellant that the amount that was deposited by the judgment-debtor was not in compliance with the requirements of Section 310A, and he has argued that it was necessary, before the sale could be set aside, that the judgment-debtor should pay, in addition to what he deposited, a sum equal to five per centum of the purchase-money to the purchaser. It is not necessary in this case to decide the question whether, in a case like this where the purchaser is decree-holder, and not a third party, a sum equal to five per centum on the purchase-money should be deposited by the judgment-debtor for the purpose of obtaining relief under Section 310A. It is sufficient to say that the judgment-debtor in this case paid in the exact sum of money which, upon calculation by the Court, was found to be due, and payable by him in accordance with the requirements of Section 310A.
3. In the case of Ugrah Lall v. Radha Pershad Singh (1891) I.L.R. 18 Cal. 255 decided by this Court, and reported, and which has, as we understand, been recently followed in another case (unreported) decided by Mac-Pherson and Ameer ali, JJ., this Court, under circumstances somewhat similar to this, held that the sale should be set aside. Sir Comer Petheram, in delivering the judgment of the Court in the case of Ugrah Lall v. Radha Pershad Singh (1891) I.L.B. 18 Cal. 255 observed as follows: Section 174 provides no machinery by which the amount payable under the section is to be ascertained, but apparently from what has taken place in the case, the amount is in practice calculated in the office after notice to the decree-holder, and when that has been done, we think the amount so calculated and settled by the officer of the Court, has been settled as the amount payable under the section, and that when the amount has been paid into Court, an order to set aside the sale must be made by the Court as a matter of right. That was a case under Section 174 of the Bengal Tenancy Act, the wording of which is very similar to Section 310A of the Civil Procedure Code with which we are concerned in the present case; and the principle which underlies that case is equally applicable here.
4. We think that in the circumstances of this case the Munsif was justified in setting aside the sale which had taken place. The appeal will accordingly be dismissed and the application No. 1467 refused with costs.
Ameer Ali, J.
5. I concur.