1. This appeal must succeed. I stated my reasons so fully when the matter was before me as a member of the referring Bench, that, on the present occasion, I only propose to add one or two very brief observations. I do not wish it to be understood, from the terms of my previous judgment, nor do I think my language is susceptible of that construction, that I intended to lay down, as an absolutely hard and fast rule that, if the 5 per cent, on the purchase-money and the amount specified in the proclamation of sale were not paid within the thirty days, the Court was powerless to set aside the sale. There may be circumstances in a particular case which would render such a rule quite inequitable. Nor am I prepared to say that, if the judgment-debtor has been misled by a mistake of the Court, the consequences of that mistake ought to fall upon him. I do not propose to lay down what constitutes a mistake of the Court. I confine myself to saying that there was certainly none in the present case. The question submitted must be answered in the negative.
2. We are now asked, at this late stage of the proceedings, to remand the case, in order that what actually took place when the judgment-debtor deposited the money, may be ascertained. We ought to be very careful in acceding to such a request, and thus reopening the whole matter and re-starting the whole litigation.
3. The respondent never suggested this course either before the Subordinate Judge or before the District Judge or before the Division Bench. 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. It is not suggested that any information was supplied in accordance with the rules which govern applications for information, and which are to be found in chapter IV of the General Rules and Circular Orders. It is only in compliance with these rules that information can, or ought to, be given.
4. I may perhaps add, that, as regards the case of Makbool Ahmed Chowdhry v. Basle Sabhan Chowdhry (1898) I.L.R., 25 Cal., 609, it now transpires that the amount was fixed by an order of the Munsif himself, in the presence of and with the assent of the pleaders of both parties. That makes a very material difference.
5. As to the 5 per cent, on the purchase-money that point has not been argued, and I adhere to what I have previously said.
6. The appeal must be allowed with costs.
7. I am of the same opinion. No evidence was taken in the case, but accepting as correct all the facts as stated in the respondent's petitions of the 13th and 17th December, respectively, the Court would not, in my opinion, be justified, on those facts, in setting aside the sale. Those facts certainly do not show that the appellant did all that he possibly could in order to comply with the requirements of Section 310A, and that it was due to the mistake of the Court that an insufficient amount was deposited. It is not necessary to consider in the present case, whether the case of Abdool Latif Moonshi v. Jadub Chandra Mitter (1897) I.L.R., 25 Cal., 216, to which I was a party, was correctly decided. That was a case under Section 174 of the Bengal Tenancy Act, and it will be time enough to consider whether that case was correctly decided when the question directly arises.
8. I agree in thinking, having regard to the facts of this case that the question referred to the Full Bench must be answered in the negative. The principle upon which the case of Makbool Ahmed Chowdhry v. Bazle Sabhan Chowdhry (1898) I.L.R., 25 Cal., 609, was decided is this; that if the Court which has to deal with an application under Section 310A, declares, though incorrectly, what is the amount that ought to be paid in by the judgment-debtor, and the judgment-debtor in accordance therewith deposits that amount, it would be manifestly unjust to hold that by reason of the shortness of the deposit, the judgment-debtor has lost the remedy given to him by that section, the mistake being a mistake of the Court. I still adhere to that principle. The facts of this case are, however, different. Here, the Munsif did not in any way declare what the amount was that should be paid; nor does it appear that the officer of the Court from whom the applicant is said to have received certain information in regard to the amount to be deposited, was the officer who was charged by the Court with the duty of supplying that information. And I think that in this case no facts have been proved, or found, upon which the Court should be justified in giving the applicant relief under Section 310A.
9. I also think that the questions referred to the Full Bench must be answered in the negative, and as I quite agree with what has fallen from the learned Chief Justice now, as well as generally with the reasoning on which the order of reference proceeds, I do not think it necessary to add anything.
10. I too agree as to the terms in which the questions referred to the Pull Bench should be answered. In my opinion it is essential to the respondent's success that it should be established that he has been prejudiced by the act of the Court and that the mistake that has been made is attributable to that act. What constitutes an act of the Court must depend on the circumstances of each case. It is clear, I think, that a mere casual act by an officer of the Court cannot be treated as the Court's act. For an act to be clothed with that character it appears to me, generally speaking, that it must be the act of the prescribed officer acting in accordance with the prescribed rules of the Court. The scope of possible proof put forward by Sir Griffith Evans on the part of the respondent, to my mind, falls far short of that. On that ground I think that no remand should be granted, while if we deal with the case exclusively on the materials before the Court, then we can in my opinion only come to the same conclusion as that which has been expressed by the Division Bench. As the point is raised on Sub-section (a) of Section 310A of the Code of Civil Procedure, it appears to me that a man is no less a purchaser, and the money paid by him is no less the purchase-money because he also chances to be the decree-holder purchasing with the leave of the Court, and for this reason I am of opinion that the judgment-debtor was bound to deposit the 5 per cent, mentioned in Section 310A, Sub-section (a).