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Rangini Sundari Dasya Vs. Hiralal Biswas and anr. - Court Judgment

LegalCrystal Citation
Subject Civil
CourtKolkata
Decided On
Reported inAIR1930Cal249
AppellantRangini Sundari Dasya
RespondentHiralal Biswas and anr.
Cases ReferredChundi Charan Mandal v. Banke Behary Lal
Excerpt:
- .....this case.2. the appeal arises out of an application made by the judgment-debtor under order 21, rule 89, civil p.c., for making a deposit of the amount necessary for setting aside the sale. she made a deposit of a certain sum of money which fell short by a few rupees of the requisite amount. it appears that the judgment-debtor's agent, the judgment-debtor being a pardanashin lady, asked the execution clerk, who as a matter of practice in the lower courts, makes calculations in these matters, as to what sum she should deposit in order to have the sale set aside under that rule. the clerk gives evidence that under the directions' of the sheristadar or the chief ministerial officer he made a calculation on the back of the execution petition filed by the decree-holder as to the amount.....
Judgment:

B.B. Ghose, J.

1. In my judgment, there is no second appeal in this case.

2. The appeal arises out of an application made by the judgment-debtor under Order 21, Rule 89, Civil P.C., for making a deposit of the amount necessary for setting aside the sale. She made a deposit of a certain sum of money which fell short by a few rupees of the requisite amount. It appears that the judgment-debtor's agent, the judgment-debtor being a pardanashin lady, asked the execution clerk, who as a matter of practice in the lower Courts, makes calculations in these matters, as to what sum she should deposit in order to have the sale set aside under that rule. The clerk gives evidence that under the directions' of the sheristadar or the chief ministerial officer he made a calculation on the back of the execution petition filed by the decree-holder as to the amount requisite for making the deposit for setting aside the sale. The judgment-debtor's agent then by a challan made the deposit. Under Rule 20, Chap. 9 of the Courts' General Rules and Circular Orders, Civil, it is the duty of the chief ministerial officer to see that the amount due from the person submitting the challan to the person to whom the amount is payable is correct. The chief ministerial officer passed the challan and it must be taken that he found that the amount entered therein as payable by the judgment-debtor for setting aside the sale under Order 21, Rule 89, Civil P.C., was correct. It is distinctly stated in, the challan that the amount was being deposited under that rule of the Civil Procedure Code for setting aside the sale. This money was deposited, two days before the expiry of 30 days as; required by the law. No mistake was, pointed out till the expiry of 30 days.

3. After the expiry of that date, the decree, holders' pleader informed the Sheristadar that the amount fell short of the required amount. The judgment-debtor-deposited Rs. 787-13 as calculated by the execution mohurrir and passed by the sheristadar. On this objection being; pointed out to the sheristadar, he made another calculation which appears in red ink at the back of the execution petition on which the previous calculation was made in black ink. After making this fresh calculation, he found that Rs. 23-6 more was required to make up the sufficient amount for deposit under Order 21, Rule 89, Civil P.C. The judgment-debtor thereupon deposited the said amount but that was after the requisite period of 30 days. According to the strict provisions of the rule, the judgment-debtor cannot ask the Court for setting aside the sale as the full amount had not been deposited within the prescribed period of 30 days. The learned Munsiff set aside the sale under that rule. He stated all the facts and referred to Coke upon Littleton for the exercise of what he called the equitable powers of the Court. There was an appeal by the decree-holder and the learned Subordinate Judge has set aside the order of the Munsiff. Against that order this second appeal has been preferred.

4. On behalf of the appellant reliance has been placed on the case of Mahomed Akbar v. Sukhdeo Pande [1911] 13 C.L.J. 467, where at p. 469 the learned Judges have held that under certain circumstances the order made under Rule 89, Order 21, Civil P.C., falls within Section 47 of the Code and under such circumstances there would be a second appeal. The learned Judges carefully refrained from stating under what circumstances the order made under Rule 89, Order 21, Civil P.C. would fall under Section 47 of the Code. There being no sure guide under that case as to the circumstances referred to by the learned Judges, I am unable to accept the contention of the appellant that there is a second appeal in this case. In my judgment, where there is an appeal as from an order under Section 2, Civil P.C., it would be difficult to bring that matter under Section 47 of the Code. In that view, this second appeal must be dismissed. The respondent will get the costs of all the Courts from the judgment-debtor appellant. We assess the hearing fee in this Court at five gold mohurs.

5. There is a separate revision application in this case and it seems to me that we may reasonably exercise our revisional jurisdiction in such a case in order to give relief to the petitioner. Here the petitioner no doubt made an application to the Court official for giving him information as to what amount he had to deposit in order to have the sale set aside. That is stated by the execution clerk himself and it appears from the fact that the calculation was made on the back of the application for execution which was on the record of the Court. It is true that the application was not made formally, that is, by a 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 rigidly 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 and he took no exception to the propriety of the conduce of the execution clerk in making the calculation on the previous occasion. The fact that the judgment-debtor made the application to the proper official and that official gave him the information as to the amount to be deposited which the judgment-debtor entered in his challan as I have stated, distinctly mentioning that it was for setting aside] the sale under Order 21, Rule 89, Civil P.C., and this challan having been passed by the sheristadar whose duty it was to see as to the correctness of the amount under Rule 20, Ch. 9 of the Court's General Rules and Circular Orders, Civil, it can be said that the exact amount required to be deposited was not put in on account of the wrong information given by the Court official; and as has been observed by Jenkins, J., (as he then was) in the Full Bench case of Chundi Charan Mandal v. Banke Behary Lal [1899] 26 Cal. 449, at p. 459, that 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 Jenkins, J., was careful to point out that what constituted the act of the Court must depend upon the circumstances of each case. In the present case, it was not the casual act of an officer of the Court but it was the deliberate calculation made by a responsible officer. In my judgment, therefore, the learned Subor dinate Judge has exercised his jurisdiction with material irregularity in holding in this case that it was not the Court official's Act which misled that judgment-debtor. I would therefore, set aside his judgment and order and restore that of the Munsiff. There will be no order for costs in the revision application.

Bose, J.

6. I agree.


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