JUDGMENT Niamatullah, J.
1. Certain zamindari property belonging to the respondent Chandrika Ram was to be sold in execution of a decree of a civil Court. The property was not ancestral, but Government revenue was payable in respect thereof. If it had been ancestral, the execution of decree itself would have taken place in the Collector's office. In case of revenue paying property which is not ancestral, execution proceedings have to take ' place in the Court which passed the decree but the sale has to be made by the Collector. This is what happened in the case before me, and the Collector sold it on 20th July 1929, declaring the appellant Abdul Wahid as the auction-purchaser for a sum of Rs. 700. On 3rd August 1929 Ram Krishna, the transferee of the judgment-debtor deposited Rs. 735 under Order 21, Rule 89, Civil P.C., for payment to the decree-holder and the auction-purchaser and for setting aside the auction sale. The sum included the decretal amount together with 5 per cent on the purchase money as compensation to the auction-purchaser. On 8th August 1929 he applied to the civil Court for sale being set aside under Order 21, Rule 89, intimating that a sum of Rs. 735 had been already deposited. On 12th August 1929, an intimation was received by the civil Court from the Collector's office that the sum of Rs. 735 deposited by Ram Krishna under Order 21, Rule 89, had been transferred to the account of the civil Court. The office of the civil Court required Ram Krishna to pay an additional sum of Rs. 7 for poundage, which he paid on 17th August 1929. It should be noticed that all the dates so far mentioned fall within 30 days after the auction sale. On the case coming up for disposal before the Munsif on 7th September 1929, the application under Order 21, Rule 89, was dismissed, and the sale confirmed, the view taken being that the deposit required by the aforesaid rule should have been made in the civil Court and not in the Collector's office. Reliance was placed on Fazal Rab v. Manzoor Ahmad [1918] 40 All. 425.
2. An appeal to the learned District Judge from the order of the first Court refusing to set aside the sale was successful. The auction-purchaser has preferred the present second appeal questioning the correctness of the view taken by the learned District Judge.
3. A preliminary objection is taken by the learned advocate for the respondent that no second appeal lies. Reference is made to Section 104 (2), Civil P.C. which provides that no second appeal shall lie from any order passed in appeal from an order. The argument assumed that the appeal to the lower appellate Court was under Order 43, Rule 1 (j), i. e., an appeal from order. The learned advocate for the appellant has, on the other hand, argued that in so far as an auction-purchaser is a representative of one or both of the parties to the suit, the question raised by the appeal is one under Section 47, Civil P.C., and that an order passed on such application is a decree. He argues therefore that the present appeal should be considered as a second appeal from a decree.
4. Having heard the learned Counsel on both sides on the merits, I prefer to dispose of the appeal not on the preliminary point raised but on the merits.
5. It is not disputed that Ram Krishna was competent to make an application under Order 21, Rule 89, Civil P.C. The only question on which the decision of the case hinges is whether the deposit made in the Collector's office and not in the civil Court was a good deposit for the purpose of an application under Order 21, Rule 89. It is true that the rule requires the judgment-debtor, or any person deriving title from him, who desires to have the sale set aside on depositing the decretal amount and 5 per cent on the purchase money, to deposit it in " Court." which means " the Court executing the decree " and not the sale office. Under the peculiar circumstances of this case, I am of opinion that the provisions of Order 21, Rule 89, were complied with. When a deposit is made in a civil Court, only a tender is filed in the civil Court and the deposit in cash is actually made in the local treasury. In this case money was actually deposited in the Treasury on 3rd August 1929. Besides the intimation sent by the Collector's office on 12th August 1929 to the effect that the money had been transferred to the account of the civil Court the application under Order 21. Rule 89, contained an allegation of payment required by Order 21, Rule 89. The civil Court called upon the applicant Ram Krishna to make a further payment of Rs. 7, which he did. The proceedings referred to are in my opinion tantamount to a tender made in the civil Court and deposit made in the treasury to the account of the civil Court within 30 days of the date of sale. The case of Fazal Bab v Manzoor Ahmad (1), relied on by the Court of first instance, is easily distinguishable. The learned Judges who decided it in revision felt handicapped by the provisions of Section 115, Civil P.C., which narrowed down the issue to the question whether the lower Court, in refusing to set aside the sale, had acted without jurisdiction, or failed to exercise its jurisdiction, or acted illegally or with material irregularity in the exercise of its jurisdiction. They observed that:
It was somewhat difficult to say whether the Court was not technically right in holding unfortunate though the judgment debtors may have been, in strictness that the money was not deposited in Court within 30 days or on 11th November, which was the first date the Court opened. It was not until December following that the money was accepted in the civil Court by ordering the transfer of the deposit to the civil Court account.
6. It should be noticed that in that case the money deposited in the Collector's office was not transferred to the account of the civil Court till long after the expiry of 30 days from the date of the sale. In the case before me, as already mentioned, it was done within 30 days. Under these circumstances I do not think that Fazal Rab v. Mansoor Ahmed (1) is applicable to the case before me. Indeed, I think that that case is not an authority for the general proposition that under no circumstances money deposited in the Collector's office and not in the civil Court can be considered to be a deposit made in " Court " within the meaning of Order 21, Rule 89, Civil P.C.
7. I am clearly of opinion that the lower appellate Court took a correct view of the case, I accordingly dismiss this appeal with costs, including counsel's fee in this Court on the higher scale.
8. Mr. Kunzru, who appears on behalf of the appellant, applies for lease to appeal under the Letters Patent. Having regard to the nature of the controversy, I think it is a fit case in which leave should be granted. I accordingly do so.