Stewart Macpherson, J.

1. The circumstances in which we are asked to interfere in revision in this case, hardly admit of any dispute. A raiyati holding was put up to auction on the 15th November, 1922 under the orders of the Munsif of Madhubani. The sale was conducted by the Nazir of the Court who is the officer of the Court designated under Order 21, rule 65 of the Code of Civil Procedure, and the High Court General Rules and Circular Orders, but not in presence of the Court The bid-sheet, the entries in which are in the handwriting of Nazir shows that the decree-holder bid Rs 188/- one Babunandan Rs. 189/- the petitioner Jaibhadar Jha Rs. 200/- Babunandan Rs. 215/-and the petitioner Rs 220/-. The Nazir sent the bid-sheet in accordance with practice to the Munsif who wrote "close" against the last offer and signed the order. The petitioner thereafter, purporting to act under Order 21, rule 84, C.P.C. paid in by chalan to the officer conducting the sale a deposit of one-fourth of Rs. 220/-. After the Court had risen for the day, certain persons, including the opposite party, approached the Munsif and represented that they had been waiting the whole day to bid and that no public auction had taken place. The learned Munsif informed them that he had not signed the order knocking down the sale and would consider their representation next day. On the following day when the Munsif took his seat in his chamber Order No. 3 in the order-sheet dated the 15th November was put up before him for signature by the execution clerk, and it is as follows;-Sale held, One Jaibhadar Jha purchased the property at Rs. 220/- and deposited the earnest money to day, vide chalan No. 1134. The purchaser to deposit the balance of the purchase money in time. Put up on 1.12.22." The Munsif initialled this order. He was then about to sign the following order on the bid-sheet, which has been written and sent by the Nazir: "Sale knocked down in favour of Jaibhadar Jha son of Sone Lal Jha, Bhatiswar Pargana Bachow for Rs. 220/- only. Munsiff 5-11-22," and which should have been put up for signature before the order-on the order sheet, when he realised that the case must be that regarding which certain persons had approached him on the previous day. He then made enquiries from them and from his office. As a result he struck out his incomplete signature on the bid-sheet and cut his initials to order No. 3 on the order-sheet. On the bid-sheet he wrote "Some of the intending purchasers represent that the sale took place in their ignorance while they were ready to bid for higher amount. In the interest of the judgment debtor the property is put to sale again", and signed and dated this order the 15th (or 16th-the figure is not clear) November. In the order sheet he wrote "Before the sale was knocked down, some of the intending purchasers represented to me that the sale took place in their ignorance while they were ready with their money to bid at the sale As the sale appears to me to have been conducted in haphazard way, in the interest of the judgment debtor the property is put to sale again." He affixed no date to this order though order No. 4 in the order sheet which is in the handwriting of the clerk is dated the 15th and is "Put up for sale tomorrow as there is no time today." Order no. 5 dated the 16th November is "One Padhokant. Jha and others file a petition stating that the decree holder wants to get the property sold secretly and praying that the sale he held in the presence of their pleader. Let the sale be held as prayed for."

2. The auction was accordingly resumed on the same day in the presence of the Munsif himself, Rs. 220/-being the starting point. The petitioner appears to have been present but he did not interpose. The first bid of the day was Rs, 420/-and it came from Mutukdhari Jha the present opposite party. There was a spirited contest and eventually against Mutukdhari Jha's final bid of Rs. 1075, the Munsif wrote and signed the order "closed", and later affixed his full signature to the order endorsed by the Nazir on the bid-sheet: " Sale knocked down in favour of Mutukdhari Jha, son of Sone Lal Jha of Bhawanipur, Pargana Hati, for Rs. 1075 only", and also after the opposite party had made the deposit required under Order XXI, Rule 84 on the order sheet of the case to an order in the same terms as order No. 3 quoted above. On the 6th December both the opposite party and the petitioner deposited the balance of the purchase money. As regards the latter, the Munsiff recorded the order "One Jaibhadar Jha in whose favour the sale was not knocked down, has deposited the balance of purchase money. He is directed to take back his money". The learned Munsif has not yet confirmed the sale, as proceedings were stayed by order of this Court prior to the date fixed for the confirmation of the sale.

3. In the view of the learned Munsif there had been no sale to the present petitioner, by his order "Close" he merely meant the officer conducting the sale to stop the auction and put up for the Court's signature the order knocking down the property and declaring the purchaser under Order XXI, Rule 84. The sale in his view would be completed only after the Court's signature was obtained. The passing of the chalan for the earnest money was done erroneously by the Sherishtadar in anticipation of the Munsif's acceptance of the highest bid which would have been forthcoming in ordinary cases and would have. denoted the completion of the sale.

4. There are no materials before us upon which it is possible to determine whether on the 15th November the Nazir conducted the auction in a hole and corner fashion. The rule laid down by the High Court which is also in accordance with long standing practice is that the auction should be conducted in the immediate presence of the presiding officer, and where that is not possible, in another place within the Court premises to be selected by the presiding officer, No application was made under Order XXI, Rule 90. The only point for determination therefore is whether there was a sale to the petitioner on the 15th. If there was, the Munsif, as is obvious and as indeed is admitted, acted without jurisdiction in resuming the auction on the following day and purporting to sell the property to the opposite party.

5. Mr. Murari Prashad on behalf of the petitioner contends that in the circumstances the sale to his client was complete and he should be considered to have been declared the purchaser of the immoveable property within the meaning of Order XXI, Rule 84. He claims that the word "close" written by the Munsif showed that the Court had accepted the bid and that the order "Knocked down to etc" was in the circumstances superfluous, being merely a record of the fact of sale such as was also entered in the order-sheet. Stress is laid on the allegation that an order to the prejudice of the petitioner was made without hearing him.

6. This contention is in my judgment, not well founded. The petitioner who, as appears from the affidavit of the opposite party, was present in Court on the 16th when the auction was resumed, made no protest though the opportunity presented itself, and it is not unreasonable to infer that he also understood that the sale was not complete. The contention, moreover, takes no account of the distinction which has on several occasions been pointed out in this Court between the function of the presiding officer in connection with a Civil Court sale and the function of the officer who conducts the sale. The sale is held by the Court. Thus in Miscellaneous Appeals Nos. 112 to 114 of 1922 the sales were not set aside inasmuch as they had, it was found, been completed the bids having been accepted by the Court (and not only by the Nazir) and the purchaser having been declared. In fact, the function of the Nazir or other officer appointed by the Court to conduct the auction is of a ministerial character: if he conducts it in presence of the presiding officer, the latter is still in direct charge of it and forthwith declares under Order XXI Rule 84, who the purchaser is and signs the formal order (as in fact happened on the 16th November in this case) and the sale is not complete until the declaration has been made and the order signed. Equally when the auction is (for reasons of convenience) not held in his presence, the presiding officer is still in charge of it, and the officer conducting the sale is in no more responsible position than if he were conducting it in presence of the presiding officer. That the sale may be completed, not only the order of the presiding officer to close the bidding, but also his order under Order XXI, Rule 84 formally accepting the bid and declaring the purchaser is required, exactly as in sale proceedings conducted in his presence In really efficient proceedings, the officer conducting the sale puts up the formal order under rule 84 for signature expeditiously and certainly before the presiding officer rises for the day, and the presiding officer before signing the order enquires from the persons present in Court whether there is any advance on the highest bid given to the Nazir. In the case before us the proceedings were somewhat casual both on the part of the officer conducting the sale, who did not put up the order terminating the sale and yet in anticipation of it erroneously accepted from the highest bidder the deposit required from a declared purchaser and on the part of the Court which rose before the proceedings in connection with the sale had been concluded. Nevertheless, it is manifest that there was no sale to the petitioner since until a bid has been accepted it is only an offer and there is no sale. In such a case it is open to the Court to resume the auction. That is what occurred in the present instance. As there was no sale to the petitioner the Court did not act without jurisdiction in declaring the opposite party to be the auction purchaser, and there is no reason so far at least as the petitioner is concerned, why the sale to the opposite party should not be confirmed.

7. Accordingly the application fails and is dismissed with costs. Hearing fee two gold mohurs.

Das, J.

8. I agree.