Ameer Ali, J.
1. It appears that on the 6th of January 1896 the holding of the appellant, who is a raiyat, was sold in execution of a decree obtained by his landlord, respondent in this Court, for arrears of rent, and was purchased by the latter on the 3rd of February. The appellant deposited in Court, under the provisions of Section 174 of the Bengal Tenancy Act, the amount recoverable under the decree, with costs and a sum equal to five per cent of the purchase-money. On the 7th of February the decree-holder presented an application to the Munsif, stating that the judgment-debtor had deposited 9 pies too little, and praying that the sale be confirmed, whereupon the Court ordered that the judgment-debtor might apply to have the sale set aside. The Court did not express any opinion whether the statement made in the decree-holder's petition that the amount deposited was short by 9 pies was correct or not. From the form of the order it would seem that the Munsif did not consider it well founded. However that may be, on the same day, presumably in order to be on the safe side, the judgment-debtor presented the following petition to the Court:
2. 'That on account of the claim in the above case together with costs and damages a sum of Rs. 52-9-15 gds. was deposited on the 3rd February, but upon a calculation it has been found that the said amount of claim has been deposited less by 3 pice (15 gds.). It is there fore prayed that the Court may be pleased to allow the said deposit of 3 pice to be deposited and to declare the execution case as finally closed.'
3. This petition does not appear to be dated, but the impression of the seal of the Court bears date the 7th of February. The 9 pies was thus brought into Court on the 7th of February, and was ordered to be received on the 10th of February by a challan of that date.
4. The lower Courts have refused to set aside the sale of the appellant's holding, on the sole ground that as he made no application it could not be set aside. The District Judge, in affirming the order of the Munsif, says that ' subsequently on the 10th February the judgment-debtor deposited in Court the 9 pies necessary, but made no application to set aside the sale.' It seems to me that the learned Judge is in error on both points; the 9 pies was brought into Court on the 7th of February at the latest and not on the 10th, and the judgment-debtor did apply by the petition of that day to have the sale set aside. No other meaning can reasonably be attached to the prayer of that petition.
5. The Courts below have rejected the appellant's application to set aside the sale of his holding, apparently on the ground that under the law the judgment-debtor is bound to apply for that purpose in express terms.
6. 'Section 174 of the Tenancy Act, which gives to the raiyat the right of having the sale of his holding set aside, runs as follows:
7. (1) 'Where a tenure or holding is sold for an arrear of rent due thereon, then, at any time within thirty days from the date of sale, the judgment-debtor may apply to have the sale sat aside on his depositing in Court., for payment to the decree-holder, the amount recoverable under the decree with costs, and, for payment to the purchaser, a sum equal to five per centum of the purchase-money.
8. (2) If such deposit is made within the thirty days, the Court shall pass an order setting aside the sale, and the provision of Section 315 of the Code of Civil Procedure shall apply in the case of a sale so set aside.'
9. The remainder of the section is immaterial for the purposes of the present case. The Act nowhere provides how or in what mode the judgment-debtor is to apply. There is nothing to compel the judgment-debtor to apply by a mukhtear or pleader, and in fact it is conceded that he might have applied verbally and in person. But it is said that the words ' may apply' indicate that some sort of application is necessary. Suppose the judgment-debtor happens to be a dumb person, would he be debarred from having the benefit of this section, or would he be compelled to employ a proxy in the shape of a pleader or mukhtear? Surely this could hardly be the intention of the Legislature. In my opinion the fact of his depositing the amount is a sufficient indication of his intention to seek the relief which the law provides. He brings in the money with what object? Surely for no other reason but to have the sale of his holding set aside. And I think the provisions of sub-section 2 clearly support this view. It declares that if the deposit is made, the Court shall pass an order setting aside the sale. It shows that when the amount is deposited, it becomes the duty of the Court to set aside the sale. In my opinion the appellant did, as a matter of fact, apply to set aside the sale, and even if be did not, having deposited the amount he is entitled to have the sale set aside, and the Court is bound (under sub-section 2 of Section 147) to make an order to that effect.
10. This, as I have already stated, was the sole ground on which the lower Courts have refused to set aside the sale. In this Court it was urged that as the amount deposited by the appellant on the 3rd of February fell short by 9 pies, the sale ought not to be set aside. This point does not appear to have been pressed in either of the Courts below, for there is not the smallest reference to it in their judgments. And I do not feel disposed to entertain it in this Court. Nor are the circumstances of the case such as to induce me to do so. The auction-purchaser, who is a imittedly the landlord decree-holder, incurs no loss: be seeks to tie the appellant down to the strict letter of the law. In that case he ought to have pressed the point in the Courts below.
11. So far as the question raised here is concerned, the present case is exactly similar to the case of Ugrah Lall v. Radha Pershad Singh (1891) I.L.R. 18 Cal. '255. decided by Petheram, C.J., and myself. In that case also the raiyat, judgment-debtor, deposited within the month a certain amount which was found afterwards to be short of the exact sum required by a trifling amount, which was subsequently paid up. And we held that the Munsif had acted rightly in setting aside the sale.
12. Assuming that the decree-holder, in a case like this, is entitled to urge the point here, I think that as the materials on the record are sufficient to enable the Court to form an opinion whether it is well founded cr not, it would only cause harassment to the judgment-debtor to remand the case for further inquiry. Ordinarily a judgment-debtor has no idea of the amount of costs and the additional sum payable by way of damages or compensation, which is calculated on the basis of a percentage on the purchuse-money. As a matter of well known practice the calculation is made in the office of the Judicial Officer executing the decree; and the aggregate amount is then entered in a challan or order to the Treasury Officer to receive and credit the same.
13. These challans contain three parts: The first part is to be filled in by the payer, the second is to be filled in by the Court or under its orders, and the third part is to be filled in at Court by the cashier or the Treasury Officer. The first part of the challan, dated the 3rd February 1896, given to the appellant, runs thus:
Name of person Name of person Number of suit Particulars Amount Remarks,
or persons on or persons to or date of of tendered. if
Whose behalf whose credit the decree or order Receipts. any.
the money is amount is to be (if any) the
tendered. Placed in the amount is
Court's Book. tendered.
1 2 3 4 5 6
Abdnl Latif Jadub Chunder Rent Decree Mention in the
Munshee. Mitter. Sale Proclama-
Rs.AS.P. Rs.As P.
Judgment-debtor Decree-holder. No. 882 of 1895. 48 15 5 Fifty-two
fee 1 1 10 seven
Dama- annas and
ges 2 7 0 nine pies
52 7 15 52 7 9 only.
(Not legible.) Abdul Latif.
Signature of Chief Siguature of the person
ministerial officer. tendering the money.
14. It bears the endorsement of the chief ministerial officer, presumably to vouch the accuracy of the amounts entered in the 4th column; otherwise his endorsement would be meaningless.
Registored Registered Account to be credited whether
Number. Date, Civil Court deposit fines or AS per Court's
forfeitures, stamp duty and challan
penalties or miscellaneous register.
Or petty receipts.
1 2 3 4
1161 3rd Feb. 1896. C. Deposit.
The Treasury Officer, Dinajpur.
Receive and credit the above if tendered to you
Signature of the before 3 P.M. to-day.
Accountant, (Not legible)
District Judge's Signature of the Judge in Charge.
Court, dated 3rd February 1896.
15. This order is signed by the Judicial Officer in charge, and is counter-signed by the Accountant of the District Judge's Court.
Part third runs thus:
Received Notes. * * * Treasury Officer entered here number of notes.
Received silver and copper.
Received Total Rupees... 52 7 9
Signature Cashier of the Court, &c.
(not legible) (not legible)
3rd February 1896. Accountant of the Treasury.
16. It will be seen from the above that the amount which the appellant deposited was checked in the sherishta or office of the Judicial Officer executing the decree; its accuracy is vouched by the chief ministerial officer; it is then placed before the Judicial Officer, and receives his sanction. With all those guarantees for accuracy the appellant goes and deposits the money. It can hardly be said under the circumstances that the appellant, a raiyat, is responsible for a mistake in calculation made in the office. He did what under the law he was required to do, viz., to obtain a challan for the amount that he had to deposit, for without the necessary challan he could not have paid the amount. With that document he goes to the Treasury and deposits the sum of money stated therein. The decree-holder (purchaser) then discovers the deficiency of three farthings, and as soon as the judgment-debtor comes to know of it he pays in that also.
17. To my mind it would be grievous under the circumstances to hold that he is disentitled to have the sale of his holding set aside.
18. For all these reasons, I would decree the appeal and set aside the orders of the Courts below, and would direct that the sale of the 6th of January 1896 be set aside with costs in this Court. We allow the appellant no costs in the Courts below.
19. I agree that a separate and formal application for the setting aside of the sale under Section 174 is not essential, and that if the necessary amount is deposited in due time the Court must set aside the sale. The challans, by which the amount is deposited with the Court's permission and which sets out the purpose of the deposit, may be regarded as a sufficient application. The decision of the lower Courts cannot, therefore, be supported on the ground on which it rests.
20. That being so, I am not prepared to dissent from the conclusion of my learned colleague, that the case is practically governed by the case to which he has referred.