ORDER
A.M. Sinha, J.
1. This revision is directed against the judgment and order passed by the learned Assistant District Judge, 3rd Court, Alipore in Money Execution Case No. 19 of 1970 rejecting the application filed by revisionist-petitioners purported to be one for obtaining an information as to dues of the decree-holder on the money decree for the purpose of paying it off and for certain other directions. In a money suit the decree-holder obtained a decree for a sum of Rs. 6100/- against the revisionist-petitioner and his co-sharers. The co-sharers, it was said, agreed to pay off all their dues in the money execution case and as such they wanted to be favoured with the information of the court as to the exact amount payable by them. They stated that they were ready to pay the said dues by Challan on the next day of the supply of such information.
2. Their immovable property, namely, 11
cottahs of land with a two storied pucca building situated at 46 and 48, R. K. Chatterjee Road, Kasba, Calcutta were attached and put to auction sale for rupees one and half lakh only on 7th July, 1990. According to the petitioner, the market value of such property at the time of sale would be more than Rs. 8 lakhs.
3. As the particulars could not be obtained through their lawyers as to such auction sale, they could not file a regular application under Order 21, Rule 89 for deposting the requisite amount in the execution case and get the sale set aside. The petitioners were very much upset and anxious on coming to know of the auction sale and filed the abovementioned petition for ascertaining their dues for the purpose of filing an application under Order 21, Rule 89 of the Civil Procedure Code.
4. The learned Assistant District Judge instead of disposing of the said application for information which was filed on July 10, 1990 put it off to a future date, i.e. on August 8, 1990 for hearing. He ultimately found that the application was mala fide as the petitioners who were in the know of their dues could have deposited the same under Order 21, Rule 89 of the Code. According to the petitioners, the impugned order affected their right, title interest and possession in the disputed property which was auction-sold for a sum of Rs. 1 1/2 lakh only, at a shockingly low price and deprived them of their opportunities of proceeding under Order 21, Rule 89 or 90 of the Civil Procedure Code within the period of limitation and within time which was allowed to be lapsed by the court by the impugned order which was passed on 8th August, 1990. So, the petitioners have come up in revision for quashing such order and stay of further proceeding in the money execution case and also for other appropriate order to be passed by the court in the facts and circumstances of the case.
5. The decree-holder-opposite party in her affidavit-in-opposition has made a total denial of the case of the petitioner and supported the impugned judgment and order. It is alleged by her that the petition is not
maintainable and is liable to be dismissed. The auction purchaser has been added as a party as his application has been allowed by this Bench. He in his affidavit-in-opposition supported the case of the decree-holder and reiterated that the application is not maintainable in fact and in law and that he purchased the property bona fide in auction sale on payment of appropriate price.
6. The only question that falls for determination in this case is if the impugned order can be sustained in law and in fact.
7. Mr. Ashoke Sengupta, learned Advocate representing the revisionist-petitioner has urged that the revision is maintainable inasmuch as the impugned order was passed on rejection of an application, which may be termed as one under S. 151 of the Civil Procedure Code. It has been further urged that it is not correct that the application was one under Rules 89, 90 and 91 of Order 21 of the Code of Civil Procedure and that the revisionist-petitioner should not be allowed to suffer for the fault of the court which instead of disposing of the application, postponed the same to the expiry of the period of limitation and erroneously decided that the application was not bona fide and not in accordance with the provision of R. 89 or Rule 90 of the Code. His next line of argument is that the court should intervene for the ends of justice for saving a property being sold at a shockingly low or disproportionate price.
8. Mr. R. Mitra, learned Advocate representing the decree-holder opposite party has urged that the court cannot go beyond the statutory provision for setting aside the auction sale and the court should not intervene in the present case inasmuch as the revisionist-petitioners who are the judgment-debtor were in the know of the auction sale and repeatedly obstructed sale and realisation of decretal dues by one means or the other.
9. Mr. S. Roy Chowdhury, the learned Advocate representing the auction-purchaser has advanced the same argument and maintained that the court should not intervene in this revision or interfere with the impugned order which is sustainable in fact and in law.
We have heard the learned Advocates representing the respective parties and we have gone through the materials placed before us and the series of decisions relied upon by them. The petition which has been annexed to the copy of the revisional application shows that no specific section or provision of law under which the petition was filed was mentioned. It only aimed at obtaining information as to amount under decretal dues of money in the money execution case by the judgment-debtors. The learned Assistant District Judge, it appears from the impugned order rejected such petition holding in the first place, that the petition suffered from infirmity as no specific order was wanted for setting aside the sale and secondly, that there is no provision for supplying information as the quantum of amount payable for setting aside the sale by the judgment-debtor.
10. In our view, the first ground on which the learned Assistant District Judge rejected the application of the revisionist-petitioner filed on 10th July, 1990 is not correct. It appears from such an application, Annexure that the applicant, i.e. the present revisionist wanted an information as to their dues to be deposited under the decree in court. It was further given out in that application if they came to know of their dues on the date of filing of the application, they would deposit the same on the next day by challan. Therefore, a specific order was prayed for from the court. As to the second ground that there is no provision for supplying information in this regard, it may be said that whenever an application is made for setting aside a sale under R. 89 of Order 21, the person interested in setting aside the sale should deposit in court a sum equal to 5% of the purchased money for payment to the auction purchaser and also for payment to the decree-holder, the amount specified in the proclamation of sale as that for recovery of which the sale was ordered, less any amount which may, since such proclamation of sale have been received by the decree-holder. So, it is necessary that the amount should be determined before the deposit is made. This rule, of course, indicates that it is the responsibility of the applicant to see the correct amount is deposited. But some
sort of ministerial work has got to be done before the determination of the correctness of the amount. It has been held that it is the Sherisladar’s duty to see the correctness of the amount where the shortness is attributable to court, the sale should be set aside on payment of the balance. Abdul Fafur Mulla v. Kalidhan, 34 CWN 250 (DB). It has also been found by our High Court and if there is deficiency in deposit on account of Execution Clerk giving wrong information on oral application (without the prescribed information slip) the applicant cannot be made to suffer by the act of court. Bharat Chandra v. Rajendranath, 64 CWN 735, see also Gopinath v. Hiraman AIR 1933 Patna 515. The principle is actus curiae neminem gravabit which means that nobody should suffer for the act of the court. It is the bounden duty of the court to see that if a person is made to suffer by the mistake of the court he should be restored to the position he would have occupied but for the mistake. The Supreme Court in Jang Singh v. Brijlal, has observed : “It is no doubt true that a litigant must be vigilant and take care but where a litigant goes to court and ask for the assistance of the court so that the obligations under a decree might be fulfilled by him strictly, it is incumbent on the court, if it does not leave the litigant to his own devices that correct information is furnished.” see also Jagat v. Jawhar, . There may be an error, omission or shortfall in determining or calculating the amount to be deposited at the time of making an application under rule 89 of Order 21 of the Code of Civil Procedure. It has been established by the preponderance of judicial decisions which are all in one way that such error or omission can be made good by the court and the applicant may be ordered to deposit the balance or the correct amount. This has become a rule of law after the amendment effected in the Code of Civil Procedure in 1976. For it would appear from the amended provision of sub-rule (2) of Rule 92 of Order 21 that in case where the amount to be deposited under Rule 89 is found deficient owing to any clerical or arithmetical mistake on the part of the
deposit the court can order such deficiency to be made up within such time as may be fixed by the court and on compliance with such order of the court it shall make an order for setting aside the sale. The proviso to such sub-rule (2), of course, enjoins that no order shall be made unless notice of the application have been given to all persons effected thereby.
11. The analysis of the relevant rules made above clearly indicate that the party interested in setting aside a sale in execution of a decree can approach the court for being informed of the correct amount to be deposited by him on appropriate determination. As such an application was filed in the present case, it was the duly of the Court to dispose of I the same promptly since the applicant declared that he would deposit the amount by the next day of the order to be passed by the court in this regard. The court had not done it. Instead it had postponed the hearing of such application indefinitely by recording an order for putting up the same when moved. It would appear that the anxious applicant or the judgment-debtor filed a petition for putting up the matter on 17-7-90 and on that date the court did not pass any order and kept the same with the record. It would appear from the relevant order sheet that the court proceeded with the auction sale. At last on 24th July, 1990 (vide order No. 245 of that date) the judgment-debtor/revisionist in the pic-sent case pressed for hearing of his application filed on 10th July, 1990. The court invited objection and fixed 8th of August, 1990 for hearing the application. By the said order he not only rejected the application filed by the judgment-debtor/revisionist on 10th July, 1990 but confirmed the said action sale held on 9th July, 1970. This courl is of Ihe view that the trial court made an illegal and irregular exercise of the jurisdiction or acted in excess of its jurisdiction by not disposing of the application earlier and giving an opportunity to the revisionist/judgment debtor in making the deposit under Rule 89 of Order 21 or any other provision of Code of Civil Procedure for setting aside the sale. Whenever a sate is sought to be set aside by any party interested in setting aside the sale under
any of the provisions of the Code, it is the duty of the court to dispose of such application before confirming the sale. The court below did not proceed in the manner while dealing with the question of sale. This is more so in view of the amended Rule 92 of Order 21 (amendment effected in 1976) that enjoins in its proviso that where any property is sold in execution of a decree pending final disposal of any claim to, or any objection to the attachment of such property, the court shall not confirm such sale until the final disposal of such claim or objection. Further this rule lays down that no suit to set aside an order confirming a sale shall be brought by any person against whom such order is made (Rule 92(3) of Order 21). This being the position in law, the court should be cautious in confirming a sale and it should dispose of all applications aiming at setting aside the sale before confirming the sale. The learned Advocate for the opposite party have relied on a catena of decisions which are in our view, not applicable to the special facts of the present case. Reference has been made to a decision , P. K. Lahari v. Nirmala Industries. It deals with the question of limitation in making deposit under Order 21 Rules 89, 92(1) of the Code not with the question raised in the proceedings. Similarly decisions , & are not attracted to the facts of the present case, all those decisions dealt with the conditions for setting aside a sale under Order 21 of Rule 89, and allied provisions but not with the question raised here.
12. So, we do not think it necessary to refer to them. In our view, the impugned order cannot be sustained in law and is, therefore, set aside.
13. The court below should proceed from the stage when the application for determination of the amount to be deposited was filed on 10th July, 1990. In the present case the court should determine the amount to be deposited by the revisionist as declared by his petition of the date and direct him to deposit the amount without delay and pass order according to law.
S.K. Mookherjee, J.
14. I agree.
15. Order accordingly.