P.V.DIXIT,J. - (1.) IN execution of a decree held by Suwalal against Kesharbai, a certain house was sold and purchased by the decree -holder himself with the permission of the Court. Thereupon the Appellant Kishanlal made an application under Order 21, Rule 89, Code of Civil Procedure code for setting aside the sale alleging that before the auction sale Kesharbai had gifted the house to her son -in law, who then sold the property to him. That application was rejected by the Additional City Civil Judge, Indore, on the ground that the Appellant had failed to deposit the full amount specified in Order 21, Rule 89(1) within thirty days from the date of the sale. The decision of the learned Additional City Civil Judge was upheld in appeal by the District Judge of Indore. Kishanlal has now come up in appeal to this Court.
(2.) THE sale was knocked down on 10th July 1956 for Rs.3,005. The Appellant presented an application under Order 21, Rule 89, Code of Civil Procedure code for setting aside the sale on 31st July 1956. He deposited Rs.2,123 on 7th August 1956 and Rs.25 on 20th August 1956. It is not disputed that the full amount as required by Order 21, Rule 89 was not deposited within thirty days of the date of the sale. It was only on 20th August 1956, that is after the expiry of thirty days from the date of the sale that the Appellant deposited Rs.25 and made up the deficiency in the amount he was required to deposit under Order 21, Rule 89, Code of Civil Procedure code. The Appellant urged in the Courts below and here also that his failure to deposit the full amount within time was due to bona fide mistake in calculation and that, therefore, the delay in the payment of the full amount should have been condoned. It was said that the Nazir of the Court made a mistake in calculation and gave a wrong information to the Appellant in regard to the sum he had to deposit. There is no substance in this appeal and it must be dismissed. Order 21, Rule 89 is a provision giving latitude to the judgment -debtor. That being so, the Courts have always held that the provision of Rule 89 must be strictly complied with and a sale would not be set aside unless the entire amount specified in Sub -rule (1) is deposited within thirty days of the date of the sale. In D.E. Seth v. Shobhasingh AIR 1924 Nag. 216, it was held that the provisions of law regarding the deposit of the five percent, commission in addition to the amount specified in the proclamation of sale must be strictly complied with and when the full amount of five per cent, of the purchase money has not been deposited the sale would be set aside; that in such cases no allowance could be made for any miscalculation even if the judgment -debtor was misinformed by the Court as to the amount which he had to pay; and that the law imposes the obligation on the Defendant himself to ascertain for himself, by whatever means he liked the amount he had to pay into the Court. A similar view has been taken in Raman v. Authrose AIR 1952 Tra. Coc 321. It is noteworthy that in the application with which the Appellant paid Rs.25 on 20th August 1956 he made a statement showing that the amount of Rs.2,123 which he had deposited on 7th August 1956 was to his knowledge not the full amount that he was required to deposit and that the Nazir had also told him that it was deficient. That application contained the statement:
(3.) THE plain meaning of this sentence is that the Nazir accepted the amount of Rs.2,123 as a deposit under Rule 89 informing the Appellant that it was deficient. In the face of this statement, it is not open to the Appellant now to say that the failure on his part to deposit the entire amount required under Order 21, Rule 89, Code of Civil Procedure code was due to any miscalculation on the part of the Nazir.;