ORDER
Manohar Lall, J.
1. This is an application in revision by one Zakir-ud-Din who in execution of a money decree against the tenant judgment-debtor purchased the holding of that tenant after the same was sold and purchased by one Nasem in execution of a rent decree by the landlord against the same judgment-debtor on November 23, 1936. The petitioner paid the amount recoverable under the decree with costs to the decree-holder out of Court within thirty days of the date of’ sale and on December 21, 1936, that is to say, just within two days, before the expiry of thirty days from the date of sale, he applied to the executing Court to be allowed to deposit the compensation money due to the auction-purchaser Mohammad Nasem and upon that the learned Munsif ordered the issue of a chalan on December 22, 1936, but on an objection filed later by Mohammad Nasem that the deposit was not in accordance with the provisions of Section 174, Bengal Tenancy Act (the money due to the decree-holder not having been deposited in Court,), the learned Munsif “on seeing the case-law in Raghunandan Pandey v. Garju Mandal 6 P.L.T. 795 : 91 Ind. Cas. 217 : A.I.R. 1925 Pat. 525 : 4 Pat. 718 : (1925) Pat. 183 and onwards” decided by his order dated March 15,1937, that the deposit was not in compliance with the above provisions of the Bengal Tenancy Act and he, therefore, ignored it and proceeded to confirm the sale. The present revision is against this order.
2. A large number of authorities have clustered round the question whether the Court has jurisdiction to set aside the sale where the provisions of Section 174, Sub-section (2) have been substantially (though not strictly) complied with. Various authorities have been considered at great length in a recent decision of this Court in Hanuman Singh v. Baijnath Prasad Singh 18 P.L.T. 409 : A.I.R. 1937 Pat. 537 : 4 B.R. 129 by my brother Rowland and he Las come to the conclusion that the Court has no jurisdiction to set aside the sale unless the amount of the decree with costs have been actually deposited in Court along with the compensation to the auction-purchaser. With the profoundest respect to the learned Judge, I do not agree with his conclusion for the reasons given below.
3. Section 174 (1) contains the provision which enables the judgment-debtor to have the sale set aside on his depositing in Court for payment to the decree-holder the amount recoverable under the decree with costs, and for payment to the purchaser a sum equal to live per cent, of the purchase money. It is to be noticed that the words used are ”the amount recoverable under the decree with costs” and not “the amount of the decree including the costs decreed” as are to be found in Section 170 (2). Again, the deposit is to be made for payment to the decree-holder and not for any other purpose. Where the decree-holder puts in a petition or tells the Court orally that he has received the amount due to him under the decree and for which the sale was held, in my opinion, it will be taking a very narrow view of the section, if the judgment-debtor was still required to deposit that money; and, if the money was indeed deposited by the judgment-debtor, it could not be withdrawn by the decree-holder because he has already received the money, and he has so stated to the Court and the result would be that the judgment-debtor would be forced to put in the money and then take it back himself, which appears to be a position which was never contemplated by the Legislature. The object of the law seems to be that in a summary proceeding for setting aside the sale under the provisions of Section 174, the Court should not be required to embark upon an enquiry whether the amount due had in fact been paid to the decree-holder. Where the decree-holder admits that he has received the amount due to him within 30 days of the date of sale, the requirements of the section which insist upon a deposit only “for payment to the decree-holder” are satisfied and then there is no “amount recoverable under the decree with costs.”
4. I now proceed to consider the authorities. The earliest case upon the point is Kabilaso Kuer v. Raghu Nath 18 C. 481 which was decided in 1891. In that case a suit was brought by the plaintiff against the defendant for setting aside the sale on the ground that the plaintiff was entitled to have it set aside under the provisions of Section 174, Bengal Tenancy Act, he having made the necessary deposit within the meaning of that section. The learned Chief Justice decided that such a suit was not maintainable, because Section 174 provided the only means by which such sales can be got rid of after they had been concluded. Having so decided, the learned Chief Justice proceeded to consider that the provisions of Section 174 had not been sufficiently complied with so as to entitle the plaintiff to the relief claimed. With great respect it was not necessary to decide this second question and these remarks must be treated as obiter, because the suit of the plaintiff was already held to be not maintainable on the ground that the provisions of Section 174, Bengal Tenancy Act, provided the only means to obtain a relief and not by an independent action. The learned Chief Justice, however, used this language:
The amount of the debt has not been deposited; but some person comes who says that he is the decree-holder, and admits that he has received the money.
5. It seems to me from the language so used, that the Court was in doubt whether the decree-holder had in fact received the money or not. Now, if that was the correct position, then obviously there was no compliance with the provisions of Section 174 of Bengal Tenancy Act, because as has been stated by me already, the Court is not required in a summary proceeding under Section 174 to embark upon an enquiry whether in fact the money due to the decree-holder has been received by him or not. In Maghunandan Panday v. Garju Mandal 6 P.L.T. 795 : 91 Ind. Cas. 217 : A.I.R. 1925 Pat. 525 : 4 Pat. 718 : (1925) Pat. 183, the case in Kabilaso Kuer v. Raghu Nath 18 C. 481 was followed by this High Court. Ross, J. delivered the leading judgment in that case. In this case in execution of a decree for rent, that tenant’s holding was sold and was purchased by a third party. Within 30 days of the date of sale the deposit of compensation to the auction-purchaser was made in Court and also a petition was filed, signed both by the judgment-debtor and the decree-holder that the amount recoverable under the decree had been paid to the decree-holder; but the learned Munsif holding that there was no compliance with the provisions of Section 174 refused to set aside the sale; the District Judge, however, in appeal, holding that there had been substantial compliance with the terms of Section 174, set aside the sale. Ross, J. held that the learned District Judge had no jurisdiction to set aside the order of the learned Munsif because no appeal lay before him, inasmuch as the question was not between the decree-holder and the judgment-debtor but between the judgment-debtor and the auction-purchaser, and, therefore, the case did not fall within the provisions of Section 47, Civil Procedure Code, and the learned Judge then proceeded to rely upon the decision of the Calcutta High Court, referred to above, and held that Section 174 had not been sufficiently complied with. Ross, J. must be taken to have adopted the same reasoning of the Calcutta High Court, namely that it was not established before him whether the person who professed to pay the money as the decree-holder was really the decree-holder or not.
6. The next case which I proceed to consider is Sham Narayan Singh v. Basdeo Prasad Singh 7 P.L.T. 25 : 88 Ind. Cas. 537 : A.I.R. 1925 Pat. 702. In this case in execution of a decree, the properties of the judgment-debtors were attached and sold and purchased by the decree-holder on March 15, 1924. After an expiry of 16 days the decree-holder was alleged to have filed a petition stating that he had made a compromise with the judgment-debtor and prayed that the sale might be set aside. But this was rejected and the sale was confirmed. It was argued in the High Court that the Subordinate Judge should be directed to act aside the sale or that he should be directed to make further enquiry whether the decree-bolder had in fact tiled the application of March 31, 1924. It should be noticed that on April 2, 1924, the decree-holder appeared in Court and repudiated the petition which had been made on March 31, stating that he had not compromised with the judgment-debtor and that he had never filed any petition to set aside the sale. On these facts it was clear that the Court could not be asked to enter into an investigation in the summary proceeding before him as to whether the decree-holder had in fact compromised with the judgment debtor or not. Regarding the case in Sham Narayan Singh v. Basdeo Prasad Singh 7 P.L.T. 25 : 88 Ind. Cas. 537 : A.I.R. 1925 Pat. 702, Ross, J. himself remarked sitting with Kulwant Sahay, J., on March 26, 1926, as follows:
The facts in that case were very different from the facts of the present case. There an application to set aside a sale purporting to be filed on behalf of the decree-holder himself had been put in and immediately afterwards the decree-holder had put in an application saying that his thumb impression had been taken forcibly on a blank piece of paper. Criminal proceedings had been taken in the matter, and it was alleged that the earlier application was a forgery. The sale was upheld. There may be some expressions in the judgment which are too broadly stated; ‘but the decision must not be taken to be intended to limit the powers of the Court in a proper case such as, for example, that referred to by Sir Lawrence Jenkins, C.J., in Ram Prasad v. Ram Charan Singh 27 Ind. Cas. 601 27 Ind. Cas. 601 : A.I.R. 1916 Cal. 64 where the learned Chief Justice thought that it would certainly be open to the Court not to confirm the sale and to treat the sale as being of no effect where that was the concurrent wish of the parties and the obvious requirement of the case. ‘There may be circumstances in which the Court is bound to exercise its inherent power in order that justice may be done.
7. In 1927 in a Division Bench of this Court in Shivram Sand v. Manulal Khemka 104 Ind. Cas. 753 104 Ind. Cas. 753 : A.I.R. 1928 Pat. 40 James, J. in delivering the leading judgment observed as follows:
It would certainly appear to be unreasonable to hold that where, after a sale has taken place, the purchasers and the decree-holders being the same persons, certify that the decree has been settled out of Court and pray that the sale may be set aside, the Court must nevertheless confirm the sale unless the owners of the property goes through the form of filing an application under Order XXI, Rule 89, and depositing the money due under the decree in Court. In the matter of setting aside a sale, the only persons interested, besides the owner of the property, are the decree-holder and the purchaser, and if these two persons agree that the sale shall not be confirmed, it does not appear to be reasonable to hold that the Court must confirm the sale whether the purchaser and the decree-holder like it or not.
8. In my opinion, it must be held that where the decree-holder agrees that he has received the money which was due to him under the decree within the time fixed by the statute for making deposit, then the only persons left are the judgment-debtor and the auction-purchaser; and as between them, the only claim of the auction-purchaser that remains is that the sale shall not be confirmed unless the compensation money has been given to him, and if this is done within 30 days of the date of the sale, the Court must set aside the sale because this brings about the situation “in which the Court is. bound to exercise its inherent power in order that justice may be done”. A similar case has been decided by their Lordships of the Privy Council in Nanhelal v. Umrao Singh 35 C.W.N. 381 : 130 Ind. Cas. 686 : A.I.R. 1931 P.C. 33 : 58 I.A. 50 : 27 N.L.R. 95 : 14 N.L.J. 28 : 53 C.L.J. 187 : 60 M.L.J. 423 : 33 L.W. 449 : (1931) A.L.J. 257 : (1931) M.W.N. 281 : 8 C.W.N. 585 : Ind. Rul. (1931) P.C. 94 P.C. This was a case under Order XXI, Rule 90, where the judgment-debtor before the sale was confirmed put in a petition to set aside the sale on the ground of fraud and irregularity in the conduct of the sale. After this application was presented and objections were raised by the auction-purchaser, a number of issues were framed including Issue No. 0, which was:
Has the Court no jurisdiction to confirm the stale in view of the fact that the decree-holder has admitted satisfaction of the decree?
9. The satisfaction alleged was after thirty days had expired from the date of the sale and the satisfaction put forward was not by means of a payment to the decree-holder but was stated to be an adjustment within the meaning of Order XXI, Rule 2. Their Lordships pointed out that Order XXI, Rule 2, had no application to the facts of the case before them because the provisions of that Rule only apply to a stage in the execution proceedings when the matter lies only between the judgment-debtor and the decree-holder but not where a third party had acquired an intervening interest after the sale had been effected, in which case the only means by which the judgment-debtor can get rid of the sale are those embodied in Rule 89 and “this remedy can only be pursued within 30 days of the sale”. I read the above quotation from Sir George Lowndes’ judgment to mean that the remedy is open to the judgment-debtor only if he comes within thirty days of the sale and if he actually deposits the money for payment to the decree-holder and also the compensation to the auction-purchaser, but this is not a decision on the point that where the decree-holder admits that he has received the money within thirty days of the sale outside Court, the judgment-debtor is still required to deposit the money in Court. The next case to be noticed is the case in Hemanta Kumari Debi v. Rajendra Kishore, Nath 97 Ind. Cas. 306 97 Ind. Cas. 306 : A.I.R. 1926 Cal. 1236. The identical point before me in the present case was the point agitated before a Division Bench of the Calcutta High Court. In this case Cuming, J. who delivered the judgment of the Court stated as follows:
I do not think that it is of any consequence that the money was actually deposited in Court when the decree was satisfied by an arrangement come to between the parties. Section 174, Bengal Tenancy Act, provides that on the judgment-debtor depositing in Court for payment to the decree-holder the amount recoverable under the decree with costs and for payment to the purchaser a sum equal to five per centum of the purchase money at any time within 30 days from the date of the sale, the Court shall set aside the sale. It seems to me that it would be playing with words to say the petition did not come under the words of Section 174, Bengal Tenancy Act, because instead of actually depositing the money in Court for the satisfaction of the decree the decree was satisfied by an arrangement come to between the parties. If there was no money recoverable under the decree because that money had been paid by an arrangement between the parties, what was still necessary for the judgment-debtors to do was what they did, namely to deposit in Court a sum equal to five per centum of the purchase money for payment to the auction-purchaser. I am, therefore, of opinion that the present application did fall under Section 174, Bengal Tenancy Act.
10. With the almost respect I agree with this observation of the learned Judge. In Indardeo Tewari v. Ram Ran Bijay Prasad Singh 16 P.L.T. 709 : 161 Ind. Cas. 714 : A.I.R. 1936 Pat. 164 : 2 B.R. 372 : 8 R.P. 181 Dhavle, J., has in a case under Order XXI, Rule 90, apparently accepted the correctness of the decision in Hemanta Kumari Debi v. Rajendra Kishore, Nath, 97 Ind. Cas. 306 104 Ind. Cas. 753 : A.I.R. 1928 Pat. 40, Upon a review of the case-law, in my opinion, it follows that where it is established either by an admission of the decree-holder or by an application made by him to the Court–and this fact is not challenged or repudiated by the decree-holder–that the amount due to the decree-holder has been received by him outside the Court within thirty days and the judgment-debtor puts in a petition to set aside the sale within thirty days thereof and deposits the compensation money due to the auction-purchaser also within the same time, the Court is bound to set aside the sale, because there is a substantial compliance with the provisions of Section 174, Bengal Tenancy Act, there being nothing on that date which the judgment-debtor can deposit as “the amount recoverable under the decree with costs for payment to the decree-holder.”
11. In the present case I asked the learned Advocate for the respondent that if I required the petitioner before me to deposit the decretal amount, (which admittedly has already been paid to the decree-holder) “who would be entitled to withdraw this deposit? The only answer which the learned Advocate could and did give was that this money would be withdrawn by the petitioner himself. This shows the absurdity of the position that the Court is enforcing the deposit of money which is to be paid back to the very man who makes the deposit the very moment the deposit is made. I, therefore, direct that the sale be set aside on the petitioner’s depositing in this Court on or before September 1, 1937, a consolidated sum of Rs. 75 being five per cent, as compensation fur the opposite party Mohammad Nasem and his costs for the hearing of this application (which are included in this sum of Rs. 75). If the petitioner has deposited any sum in the Court below as compensation for the opposite party, the petitioner will be entitled to withdraw it. If the above sum is not deposited within the time fixed by me, the application will be dismissed with costs. Hearing fee one gold mohur.