1. This is a Chamber summons taken out by certain purchasers at a Registrar's sale in a' mortgage suit and adjourned to Court for hearing. The mortgaged premises are No. 22, Nayanchand Datta Street, and they were brought to sale by public auction in pursuance of the final decree passed on 8th April 1927. In the notification of sale the premises are described as follows:
All that brick-built, partly one storeyed and partly two storeyed, messuage, tenement or dwelling house together with the piece or parcel of land thereunto belonging, containing by measurement 8 cottas 5 chhittaks 18 sq. ft. more or less, situate, lying at and being premises No. 22, Nayanchand Datta Street, in Sutunati in the northern part of the town of Calcutta.
2. Of the conditions of sale the following are material:
Condition 2. The sale is subject to a reserved bidding which has been fixed by the Registrar.
Condition 12. Where any error or misstatement shall appear to have been made in the particulars or description of the property, all such errors or misstatements, where capable of compensation, shall not annul the sale nor entitle the purchaser to be discharged from the purchase; but compensation shall b3 made to or by the purchasers as the case may be, and the amount of such compensation shall be settled by a Judge in Chambers.
3. The applicants were, on 27th June 1928, declared the highest bidders and [purchasers of the premises at the price of Rs. 36,150. There were certain objections as to title, which the purchasers failed to substantiate, and eventually a certificate of sale was granted on 18th February 1929, and, on 27th March, possession of the premises was obtained through the Sheriff.
4. On 19th April the applicants wrote to the Registrar and to the attorney of the plaintiff mortgagee complaining that a measurement made by an engineer at their instance disclosed the fact that the area of the premises was 7 cottas 8 chhittaks 13 square feet and not 8 cottas 5 chhittaks and 18 square feet as stated in the notification.
5. It is conceded that the smaller area is correct, and there is therefore an error in the notification of 13 chhittaks 5 square feet or roughly 10 per cent. The error arose from the fact that, although the Registrar had directed measurement to be made by a qualified certified engineer whom he named, the measurement was actually made during the engineer's absence from Calcutta, and in circumstances which I am compelled to say do little credit to the judgment of the plaintiff's attorney, by the engineer's unqualified employee. The applicants now ask for an order that they may be declared entitled to such compensation as this Court may think reasonable, for the deficiency in the area of the purchased property, and that the plaintiff may be ordered and decreed to pay that compensation.
6. The plaintiff opposes the application v and maintains, first, that as a matter of, law it is now too late after completion and issue of the sale certificate to invoke the provisions of condition 12.
7. I have been referred to various authorities, and consideration of them has convinced me that this contention is unsound. In In re Turner & Skelton  13 Ch. D. 130, Jessel, M.R., declined to follow the decision of Malins, V.C. in Hanson v. Thacker  7 Ch. D. 620, which was that a purchaser could not, in the absence of fraud, obtain compensation after conveyance for a misrepresentation, even though such misrepresentation related to the subject-matter of the contract; and he upheld the order of the Judge in Chambers awarding compensation for the deficiency in terms of a condition of sale similar to condition 12 in this case.
8. It is true that Malins, V.C., in Allen v. Richardson  13 Ch. D. 524, expressed his disagreement with Jessel M.R.'s decision in In re Turner & Skelton  13 Ch. D. 130, but later cases show that the opinion of Jessel M.R. is to be preferred. Joliffe v. Baker  11 Q.B.D. 255 is distinguishable, in that the contract did not contain any provision for compensation in Palmer v. Johnson  12 Q.B.D. 32, A.L. Smith, J., followed In re Turner & Skelton  13 Ch. D. 130 in preference to Allen v. Richardson  13 Ch. D. 524 and his decision was affirmed by the Court of Appeal-Brett M.R. Bowen and Fry, L. JJ. whose judgments are reported in the same volume at p. 351. It is true these were all cases of sale by private treaty, but I can see no reason for not applying the same principle to a sale by the Registrar at the order of the Court.
9. I must notice two Indian cases cited by Mr. Roy. In Doyal Krishna Naskar v. Amrita Lal Das  29 Cal. 370, an auction-purchaser of a tenure at a mufassil Court sale failed to recover compensation for deficiency in area, though he was held entitled to abatement of rent, There the suit was based on the allegation that the decree-holder was guilty of fraud, an allegation, the plaintiff failed to make good, and there was further, no condition in the sale proceedings as to compensation for errors or misdescription.
10. I do not see that the observations of Chaudhuri, J., in Basir Ali v. Hafiz Narir Ali  43 Cal. 124, assist the plaintiffs. Indeed, if applicable at all, they show that the considerations which apply to sales under mortgage decrees are not different from those that apply to sales 'by private treaty.
11. Mr. Roy next maintains that the purchasers conduct in the circumstances of 'this particular case disentitles them to the order they seek. To substantiate 'this, he must, in my opinion, prove facts that amount to waiver or something analogous to it. For myself I do not see in the purchasers' conduct anything approaching waiver. The notification expressly states that the area is 'by measurement,' and Mr. Bose has pointed out that, under the rules of this Court, where, as here, the mortgagee has obtained leave to bid, a survey and valuation are in fact always obtained.
12. I think these purchasers were entitled to assume that the dimensions appearing fin the notification were correct, and the discrepancy between the title-deeds and the notification was not sufficient to put them on enquiry in this respect; further, I cannot see how the position is altered by the fact that the purchasers put forward objections as to title or how such a course can be construed as a waiver of all objections as to area. Vacant possession was not obtained until 27bh March 1929, and the facts were communicated to the Registrar Jess than a month thereafter. There is nothing, in my opinion, to show that the purchasers abandoned their right to take exception to the area or accepted the notification as conclusive. Considering the case from the point of view of equity, I should be most reluctant to permit the plaintiff to take advantage of an irregularity to which her own attorney was a party.
13. Mr. Roy's final argument is not without attraction on the ground of common sense. He asks me to say that these purchasers should not be awarded compensation, because they have substantially obtained that for which they bid at the auction. What they really wanted and what, in fact, they have got is No. 22, Nayanchand Datta Street, and, in bidding for it, they were thinking of the property as a whole and not as an area of ground of so many cottas, chhitaks and square feet with buildings on it.
14. Now, apart from the practical difficulty, if not the impossibility of forming a conclusion as to the state of mind of each of these purchasers on 27th June 1928, the answer appears to me to be that the language of condition 12 shows that the auction is conducted on the basis that the purchaser shall be entitled as of right to a proportionate abatement in the case of error or misdescription, and he does not lose that right because he has in fact, in spite of the misdescription, made an advantageous bargain.
15. The order therefore that I make is to refer it to the Registrar to enquire and report what sum is properly payable by the plaintiff in respect of the deficiency of 13 chhittaks and 5 square feet in the area of the mortgaged premises, after deducting that portion of the purchase price which he considers represents the value of the building and structures, the sum payable to bear the same proportion to the purchase price after making the aforesaid deduction, as 13 chhittaks 5 square feet bear to the area given in-the notification of sale.
16. The applicants will have their costs of this application, and the costs of the enquiry I have directed will be reserved. If necessary, I Certify for counsel.