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HIGH COURT OF CALCUTTA
S. C. Lahiri
BHARAT CHANDRA BERA - Appellant
Versus
RAJENDRA NATH GHOSE - Respondent
Civil Rule 2663 Of 1953
Decided On : JUNE 13, 1956
AUCTION SALE - SETTING ASIDE - MISTAKE BY COURT OFFICIAL - DEPOSIT OF AMOUNT - POUNDAGE FEE - LIMITATION - ORDER 21, RULE 89, C. P. C. - CIVIL RULES AND ORDERS, RULES 590, 591, 598, 755, 760, 246.
Fact of the Case:
The judgment debtor filed an application under Order 21 Rule 89 of the Code of Civil Procedure for setting aside an auction sale held on 8-9-1952. He claimed that he was misled by an act of the Court, specifically by the execution clerk who provided him with incorrect information regarding the amount required to be deposited. The execution clerk had failed to follow the proper procedure as per Rules 590 and 591 of the Civil Rules and Orders, which prohibit surreptitious or gratuitous supply of information by ministerial officers. The judgment debtor made the deposit based on the incorrect information, but it was later discovered that the amount deposited was short by Rs. 21/2/-. He subsequently deposited the additional amount, but the sale was confirmed by the Court. The judgment debtor challenged the confirmation of the sale in the High Court.
Finding of the Court:
The High Court held that the information provided by the execution clerk, though irregular, was still considered information supplied by the Court. The Court relied on previous Division Bench judgments which had held that information supplied on an oral application by a litigant is information supplied by the Court. The Court also found that the Sheristadar, the chief ministerial officer, had failed to perform his duty as per Rule 760 of the Civil Rules and Orders, which requires him to verify the amount tendered with the records before passing the chalan. The Court further held that the judgment debtor was not required to deposit the poundage fee under Order 21 Rule 89, as per the decision in Gopal Chandra v. Gobardhan Chandra. However, the Court clarified that the Court could direct the judgment debtor to deposit the poundage fee as a condition precedent to considering the application under Rule 246 of the Civil Rules and Orders.
Issues: 1. Whether the judgment debtor was misled by an act of the Court. 2. Whether the judgment debtor was required to deposit the poundage fee under Order 21 Rule 89. 3. Whether the deposit made by the judgment debtor was within the limitation period.
Ratio Decidendi: 1. The Court held that the information provided by the execution clerk, though irregular, was still considered information supplied by the Court. The Court relied on previous Division Bench judgments which had held that information supplied on an oral application by a litigant is information supplied by the Court. The Court also found that the Sheristadar, the chief ministerial officer, had failed to perform his duty as per Rule 760 of the Civil Rules and Orders, which requires him to verify the amount tendered with the records before passing the chalan. Therefore, the Court concluded that the judgment debtor was misled by an act of the Court. 2. The Court held that the judgment debtor was not required to deposit the poundage fee under Order 21 Rule 89, as per the decision in Gopal Chandra v. Gobardhan Chandra. However, the Court clarified that the Court could direct the judgment debtor to deposit the poundage fee as a condition precedent to considering the application under Rule 246 of the Civil Rules and Orders. 3. The Court declined to consider the issue of limitation raised by the auction purchaser for the first time in the third Court, as it involved investigation into questions of fact.
Final Decision: The High Court allowed the judgment debtor's application under Order 21, Rule 89 of the Code of Civil Procedure and set aside the sale. However, the judgment debtor was directed to deposit an additional amount of Rs. 16/12/- within a fortnight from the date of service of notice of arrival of records upon his Pleader. In case of failure to make the deposit within the specified time, both the Rules would stand discharged with costs.
( 1 ) I have heard the learned advocates appearing for the parties in these cases at some length because I am of opinion that the questions I have to decide in these two Rules are of some importance. These two Rules have been obtained by the judgment-debtor in a proceeding for setting aside an auction sale held on 8-9-1952. The facts which are undisputed are as follows: one Nalini Bala Ghose obtained a decree for a sum of Rs. 291/4/- against the petitioner and that decree was put into execution in Money Execution Case No. 25 of 1952. The property of the judgment-debtor was brought to sale and it was purchased on the 8th September, 1952 by a stranger named Rajendra Nath Ghose. The Civil Court remained closed for the Puja holidays from 17-9-1952 upto 20-10-1952 and reopened on 21-10-1952. On that date the judgment-debtor petitioner filed an application under Order 21 Rule 89 of the Code of Civil Procedure for setting aside the sale by making necessary deposits. His case is that for the purpose of ascertaining the amount which he was required to deposit under Order 21 Rule 89, he engaged a clerk named Md. Ishaque who approached the execution clerk of the Court and learnt from him that the judgment-debtor was required to deposit a sum of Rs. 302-1-9 to be paid to the decree-holder and a further sum of Rs. 21/2/- to be paid to the auction-purchaser. On the following day, that is 22-10-1952, the judgment-debtor made the deposits by two challans bearing Nos. 1552 and 1553. Upon these deposits being made the sale was set aside by order No. 14 dated 3-11-1952. Against the order setting aside the sale the auction-purchaser filed a Miscellaneous Appeal before the District Judge which was registered as Misc. Appeal No. 766 of 1952. On 18-11-1952 the Execution Clerk detected that the amount which had been deposited by the judgment debtor fell short by another sum of Rs. 21/2/ -. Thereupon the judgment-debtor filed an application on 19-11-1952 asking for permission to make the further deposit of Rs. 21/2/- and by Order No. 15 dated 19-11-1952 the executing Court ordered the judgment-debtor to deposit the amount provisionally and the amount was actually deposited on the following day by another challan. On 16-12-1952 the auction-purchaser Rajendra Nath Ghose raised objection to the acceptance of the further deposit made by the judgment-debtor. On 17-12-1952 the decree-holder Nalini Bala withdrew the decretal dues amounting to Rs. 302/1/9. By an order dated 17-1-1953, the learned Munsif vacated Order No. 14 by which the sale had been set aside. Thereafter the sale was confirmed by an order dated 24-1-1953. The Miscellaneous Appeal which had been filed by the auction-purchaser against the order setting aside the sale was allowed by the appellate Court by an order dated 23-4-1953. The judgment-debtor filed an appeal against the order confirming the sale and that appeal was Misc. Appeal No. 86 of 1953. By an order dated 11-7-1953 the Misc. Appeal filed by the judgment-debtor was dismissed. Then the judgment-debtor moved this Court against the order of dismissal of Misc. Appeal No. 86 of 1953 and obtained one Rule which is Civil Revision No. 2606 of 1953. The judgment-debtor also moved this Court under Section 115 against the order of the appellate court allowing the appeal of the auction-purchaser in Misc. Appeal No. 766 of 1952 which has given rise to Civil Revision No. 2663 of 1953.
( 2 ) THE points involved in both the Revision Cases are the same and they are also between the same parties and accordingly they have been heard together.
( 3 ) THE first question which requires consideration in this case is whether the petitioner can be said to have been misled by an act of the Court. If he was, he is entitled to relief, if he was not, the application for setting aside the sale cannot be accepted. On this question the Munsif held that as the information obtained by the petitioner was obtained by him surreptitiously, it cannot
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