JUDGMENT
W. Comer Petheram, Kt., C.J.
1. This matter comes before the Court on appeal from an order of the District Judge of Shahabad, and a rule to set aside the order of the Munsif, out of which that of the District Judge arose. The appeal to the District Judge was dismissed by him, on the ground that no appeal lay in the case. That question has not been argued before us, and the real question arises upon the rule.
2. A decree for rent was obtained by the landlord against the applicant, and the tenure was put up for sale in execution of the decree, and sold to the present respondent on 30th October 1889. On 25th November 1889 the applicant presented the following petition to the Munsif in whose Court the action had been brought:
Petition for reversal of auction sale for arrears of rent under Section 174, Act VIII of 1885.
Present:
Purna Chunder Dey, Roy Bahadoor, Munsif at Buxar, District Shahabad. No. 423 of 1889.
Maharajah Radha Pershad Singh Bahadoor (decree-holder) v. Ugrah Lall (judgment-debtor).
Hail Cherisher of the poor:In execution of this decree, the whole of the gozashta land has been sold by public auction, but the sale has not been confirmed. Within 30 days your petitioner, his brother Rajpati Lall, nephew (brother’s son) Ram Parsad Lall, Mohabeer Ram, son of Srigobind, Ramdainy Tailee, son of Bisram Tailee, and Sheo Churn Lall, son of Hanuman Doss, of Bhojpurkadim, have sold some gozashta land, and brought the decretal money with compensation for the auction-purchaser at 5 per cent. The amount as per calculation be received, and the auction sale set aside.
Ugrah Lall, judgment-debtor, by my own pen.
The 25th November 1889.
3. And on the next day, November 26, the Munsif made this order: “The judgment-debtor may deposit the amount if he likes.” On the same day a chalan was prepared in the office of the Munsif, and was signed by his sheristadar, for the sum of Rs. 792-11-6, and was given to the applicant as showing the amount payable by him under Section 174 of the Tenancy Act, and the officer in charge of the Treasury was directed to receive that amount, if it was paid before 3 o’clock on the 28th. The amount was in fact paid in by the applicant before that time, and was received by the officer. It was afterwards, and after the expiration of 30 days from the date of the sale, discovered that the calculation made in the office of the Munsif was incorrect, and that the amount which should have been paid by the applicant in respect of the matters mentioned in Section 174, was two or three rupees more than the sum mentioned in the chalan, and the Munsif, holding that the provisions of the section had not been complied with, confirmed the sale. We think that in doing so he has taken an incorrect view of the law. Section 174 provides no machinery by which the amount payable under the section is to be ascertained, but apparently, from what has taken place in this case, the amount is in practice calculated in the office after notice to the decree-holder, and when that has been done, we think the amount so calculated and settled by the officer of the Court, has been settled as the amount payable under the section, and that when that amount has been paid into Court, an order to set aside the sale must be made by the Court as a matter of right. For these reasons, we think that the order of the Munsif confirming the sale, after the amount which had been found by the Court officer to be the amount payable had been paid, was without jurisdiction, and must be set aside, and an order to set aside the sale passed in its place. Appeal against order dismissed. No costs. A.A.C. Rule made absolute.
