A mere deposit of the decretal dues and compensation money is not sufficient to set aside a sale unless accompanied by an application to set aside the sale.

Imam, J.

1. This is an application by the auction purchaser against the order of the Munsiff, 2nd Court, Monghyr, who set aside a sale as the full decretal dues with compensation had been deposited. The sale was held on the 29th April 1947 in execution of a decree for rent and at that sale the petitioner was an auction-purchaser not being the decree-holder. On the 30th May 1947 the opposite party judgment-debtors filed a petition to be allowed to make the necessary deposits. The deposit was actually made on the 31st May 1947. The judgment-debtors had filed a petition supported by an affidavit that the deposit could not be made on the 30th May 1947, as it had already become late after undergoing the procedure of deposit and by the time it was complete, the Registrar had already left the Court. The Munsiff having believed the petition of the judgment-debtors was of the opinion that the deposit made would be considered to have been made on the 30th May 1947, as he had ordered that the money sought to be deposited be accepted.

2. The petitioner, however, had taken an objection before the learned Munsiff to the effect that no formal application for setting aside the sale had been made and hence the sale could not be set aside. Reliance was placed on a decision of this Court in Dhari Jena V/s. Gaurang Charan, AIR (27) 1940 Pat 87. The learned Munsiff was of the opinion that the case cited was not applicable as the deposit in that case was one under Order 21, Rule 89, whereas the present application had been made under Sec.174 of the Bihar Tenancy Act. He, therefore, thought that no formal application to set aside the sale was "necessary and the deposit of the purchase money with compensation itself for an application for setting aside the sale."

3. Mr. C. P. Sinha had urged that the deposit was made beyond 30 days of the sale, therefore, the application was time-barred. The last day for deposit was the 29th May 1947. 29th of May 1947, however, was a holiday and it was conceded by the pleader for the decree-holder in the Court below that the deposit was good if it be found that it was made on the 30th May 1947, because the 30th day after the sale was a holiday. It appears that on the 30th May 1947, the judgment-debtors had applied to the executing Court to deposit the money and the Munsiff had ordered that it be accepted as would be evident from the chalan. In the circumstances as I have already stated he thought that the deposit must be regarded as having been made on the 30th May 1947, and not the 31st May 1947. I am in agreement with the Munsiff that so far as the deposit is concerned, having regard to the facts, that it must be treated as having been made on the 30th May 1947 and therefore within time. Mr. Sinha, however, had raised a further question in this Court, which apparently had not been raised in the Court below, to the effect that the deposit to be made must not only be the amount recoverable under the decree with costs, but there should be a further deposit of a sum equal to 5 per cent of the purchase money. While the chalan showing the deposit of the amount recovarable under the decree bears the signature of the Munsiff as well as the seal of the Court, there appears to be no signature of the Munsiff or the seal of the Court on the chalan with reference to the compensation money, that is to say, 5 per centum of the purchase money. I am not too sure whether in Civil Revision, for the first time, this submission on behalf of the petitioner can be entertained as the point ought to have been raised before the Munsiff where the facts could have been ascertained. It is, however, significant that in the chalan which bears the signature of the Munsiff and the seal of the Court, in one of the columns, it was originally stated that the chalan was for the amount recoverable under the decree as well as compensation. The word "compensation then appears to have been cut out and another chalan for the compensation money was