Imam, J.
1. This is an application by the auction purchaser against the order of the Munsiff, 2nd Court, Monghyr, who set aside a sale as the full decretal dues with compensation had been deposited. The sale was held on the 29th April 1947 in execution of a decree for rent and at that sale the petitioner was an auction-purchaser not being the decree-holder. On the 30th May 1947 the opposite party judgment-debtors filed a petition to be allowed to make the necessary deposits. The deposit was actually made on the 31st May 1947. The judgment-debtors had filed a petition supported by an affidavit that the deposit could not be made on the 30th May 1947, as it had already become late after undergoing the procedure of deposit and by the time it was complete, the Registrar had already left the Court. The Munsiff having believed the petition of the judgment-debtors was of the opinion that the deposit made would be considered to have been made on the 30th May 1947, as he had ordered that the money sought to be deposited be accepted.
2. The petitioner, however, had taken an objection before the learned Munsiff to the effect that no formal application for setting aside the sale had been made and hence the sale could not be set aside. Reliance was placed on a decision of this Court in 'Dhari Jena v. Gaurang Charan', The learned Munsiff was of the opinion that the case cited was not applicable as the deposit in that case was one under Order 21, Rule 89, whereas the present application had been made under Section 174 of the Bihar Tenancy Act. He, therefore, thought that no formal application to set aside the sale was
"necessary and the deposit of the purchase money with compensation itself for an application for setting aside the sale."
3. Mr. C. P. Sinha had urged that the deposit was made beyond 30 days of the sale, therefore, the application was time-barred. The last day for deposit was the 29th May 1947. 29th of May 1947, however, was a holiday and it was conceded by the pleader for the decree-holder in the Court below that the deposit was good if it be found that it was made on the 30th May 1947, because the 30th day after the sale was a holiday. It appears that on the 30th May 1947, the judgment-debtors had applied to the executing Court to deposit the money and the Munsiff had ordered that it be accepted as would be evident from the chalan. In the circumstances as I have already stated he thought that the deposit must be regarded as having been made on the 30th May 1947, and not the 31st May 1947. I am in agreement with the Munsiff that so far as the deposit is concerned, having regard to the facts, that it must be treated as having been made on the 30th May 1947 and therefore within time. Mr. Sinha, however, had raised a further question in this Court, which apparently had not been raised in the Court below, to the effect that the deposit to be made must not only be the amount recoverable under the decree with costs, but there should be a further deposit of a sum equal to 5 per cent of the purchase money. While the chalan showing the deposit of the amount recovarable under the decree bears the signature of the Munsiff as well as the seal of the Court, there appears to be no signature of the Munsiff or the seal of the Court on the chalan with reference to the compensation money, that is to say, 5 per centum of the purchase money. I am not too sure whether in Civil Revision, for the first time, this submission on behalf of the petitioner can be entertained as the point ought to have been raised before the Munsiff where the facts could have been ascertained. It is, however, significant that in the chalan which bears the signature of the Munsiff and the seal of the Court, in one of the columns, it was originally stated that the chalan was for the amount recoverable under the decree as well as compensation. The word "compensation' then appears to have been cut out and another chalan for the compensation money was filled in. It is just possible that when the signature of the Munsiff was being obtained on the first chalan, the other chalan, through oversight, was not singed by the Munsiff. The entry in the first chalan, which was signed by the Munsiff, that the money to be deposited included compensation is a sufficient indication to mean that the judgment-debtors had at first thought that the amount recoverable under the decree as well as the comsation money could be deposited by means of a single chalan. As the question was not raised in the Court below and it had been conceded by the pleader for the decree-holder that the deposit was good, if it was to be treated as having been made on the 30th May 1947, the submission of Mr. Sinha now made ought not to be entertained.
4. I think it may now be regarded as well settled, under Order 21, Rule 89, that a mere deposit of the decretal dues and compensation money would not be sufficient to set aside the sale unless it was accompanied by an application to set aside the sale. The decision of this Court in Dhari Jena… v. Gauranga Charan Sahu…Opposite Party.', , is in point. The learned Munsiff, however, thought that there was a distinction to be made as the application of the judgment-debtors was under Section 174 of the Bihar Tenancy Act. This section states:
"Where a tenure or holding or portion of a holding is sold for an arrear of rent due in respect of the tenure or holding then, at any time within thirty days from the date of sale, the judgment-debtor or any person whose interests are affected by the sale, other than a transferee of a holding from whom the landlord is entitled to receive the landlord's registration fee and who has neither paid the landlord's registration fee to the landlord nor deposited the same with the Collector, 'may apply 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 five per centum of the purchase money."
The words "may apply to have the sale set aside" in this section correspond to the words used in Order 21, Rule 89 of the Code of Civil Procedure and I think that no real distinction can be made as was held by the Munsiff. In this connection I would refer to the following observations of Atkin-son and Jwala Prasad, JJ., in the case of 'Sarjoo Prasad v. Nannoo Rai', 1 Pat L J 459 at p. 462.
"But when we compare the two sections, Section 174 of the Bengal Tenancy Act and Order 21, Rule 89 of the new Code it requires a very subtle mind to distinguish any essential difference between the obligations imposed by both these sections. To my mind it is merely trifling with words to suggest as has been suggested, that there is any material difference between the two sections."
In the case before me when the deposit was made 3t was accompanied by an application and the following is the official translation of that petition:
"It is submitted that the decree-holder has obtained the decree surreptitiously. This petitioner has no knowledge whatever about it. All of a sudden yesterday the petitioner has learnt that the sale was to be confirmed today. Therefore this petition is filed and it is prayed that the entire decretal amount has been brought to Court. I herewith file the chalan along with this petition. The chalan may be passed in the name of Maulvi Mohammad Yusuf Vakil II and order may be passed to accept this amount today so that justice may be done."
It is true that the application does not state in so many words that the sale be set aside. The petition as a whole has to be considered ana the prayer that justice may be done on the deposit being made amounts, in my opinion, to a prayer that the sale be set aside; otherwise there would be no reasonable meaning to such an application. While the Courts must insist, having regard to the authorities, that an application to set aside the sale must accompany the deposit and that a mere deposit without such an application would not entitle a Court to set aside the sale, I think that a reasonable interpretation must be given to such an application as was filed in this case. In this connection I would refer to the decision of Nasim Ali, J., in the case of 'Jyotish
Chandra v. Surendra Nath',
43 Cal W N 252, where in the chalan itself the purpose of the deposit had been stated but no application for setting aside the sale had been filed. It was held by him that the Court had jurisdiction to set aside the sale. In my opinion, it cannot be said that the learned Munsiff acted with-out jurisdiction or with material irregularity in the exercise of his jurisdiction in setting aside the sale.
5. The application must accordingly be dismissed with costs. Hearing fee one gold mohur.
6. I agree, and would like to add that in some decisions it has been observed that the application may be oral or written. There are decisions which have even gone to the extent of saying that the filing of a chalan with permission to deposit in Court the decree amount and a sum equal to 5 per cent, of the purchase money should by itself be treated as an application to set aside the sale, it is, however, not necessary to go to that extent in the present case, as it may be argued that the decision of this Court in 'Dhari Jena v. Gouranga Charan', , is against that view; in that case the deposit was made by a chalan and was not accompanied by any application whatever. As my learned brother has point ed out, on a proper construction of the application. filed in this case, it must be held that the applicant wanted the Court to set aside the sale, though no express prayer to set aside the sale was made. I do not think the absence of an express prayer to set aside the sale need necessarily invalidate the application (See 'Veettil Seethi v. Ambalath Veettil Kolathur Ahmad', AIR 1917 Mad 225; 'Ranya v. Baliram', , and 'Benarasi Das v. Ram Chander', AIR 1933 Lah 210). Unless I am forced to take such a technical view by the terms of the rule or section, I shall be most re luctant to do so, and the rule or section does not say that the application must be in a particular form or contain a prayer in express words to set aside the sale. The decision in 'Ramshivendra Narayan v. Awadh Bihary', does not indicate that such a restricted view of the rule must be taken.