Where a party is entirely responsible for the delay in making the deposit, the maxim nunc pro tune has no application.

Kanhaiya Singh, J.

1. The civil revision and the Miscellaneous Appeal, relating to the same matter, have been heard together and will be disposed of by one judgment. They have been filed against the order refusing to set aside a sale held in execution case No. 1423/463 of 1955 in the court of the 1st Additional Munsif Arrah, in the following circumstances. Prior to the impugned sale, by consent of the parties, the executing court by its order dated 14-4-1956 allowed eight instalments for payment of the decree, the first instalment falling due on 15-6-1956. The order reads as follows:-

"By consent of Parties it is ordered that Rs. 32-12-0 the cost under the decree, be paid by 1-5-56 and the balance be paid in eight quarterly instalments the first seven of which shall be of Rs. 25/- each and the last shall be for the balance together with interest at 6 p. c. p. a. and the cost of the execution beginning from 15-6-56. On default of any of the instalments the D. H. shall be entitled to realise the entire amount due on such date at once by this execution. Sale is adjourned to 1-5-56 at 8 A.M."

The cost of Rs. 32-12-0 was duly paid by the judgment-debtor. The very first instalment was not paid by him" in accordance with the order of the court which resulted in sale of the properties. On 15-6-1956 i.e. the date on which the first instalment fell due, the judgment debtor filed a chalan for Permission to deposit the instalment money. The chalan, however, was defective and was, therefore, returned. He again filed a chalan on 19-6-1956, after removing the defects and prayed for acceptance of the instalment money. This was followed by an application on the following day, i.e. on 20-6-1956 praying to issue chalan. The Court ordered the chalan to issue and directed the judgment-debtor to file a copy of the chalan showing the deposit of the instalment money. The money was in fact deposited on 20-6-1956, but the chalan evidencing the deposit was not filed in court in spite of several adjournments. The next instalment fell due on 14-9-1956. On this date the judgment-debtor filed a petition along with a chalan praying for permission to deposit the next instalment money. The issue of Chalan was refused as the sale had already taken place in the meantime. The case of the judgment debtor is that he had no knowledge of the sale until 14-9-1956, as he contracted jaundice and went to Chiraitar for treatment.

It appears that as the first instalment was not paid on 15-6-1956, the court ordered the execution to proceed and in due course the property was sold on 17-7-1956 and the sale was confirmed on 20-8-1956. The judgment-debtor thereupon filed miscellaneous case No. 332 of 1956 for setting aside the sale. The learned Munsif held that the decree was made payable in instalments with the consent of the parties, and, therefore, the court was incompetent to enlarge the time for payment of different instalments and since there was a default on the part of the judgment-debtor in payment of the first instalment he was not entitled to an extension of time and that the sale held was good and legal.

On these findings, he dismissed the application on 18-1-1957. Against that order the judgment-debtor filed an appeal before the District Judge of Arrah, which was numbered as Miscellaneous Appeal No. 40 of 1957. By his order dated 13-3-1957 the learned District Judge dismissed the appeal, holding that the appeal was not maintainable and was also meritless. Against that order of the District Judge, the judgment debtor has preferred in this court Miscellaneous Appeal No. 140 of 1957. As a precaution he has also filed Civil Revision No. 286 of 1957 against the order of the learned Munsif dated 1-1-1957 refusing to set aside the sale.

2. The sole question in this case is whether the sale was liable to be set aside. It is manifest that the first instalment was not paid on 15-6-1956. The amount was actually deposited on 20-6-1956. There was, therefore, clear defau