Adami, J.The facts of this case have been detailed in my order remanding the case for report by the learned Munsif. It is only necessary to state that the judgment-debtor had time up to the 20th of August to deposit the decretal amount with costs in order to set aside the sale. On the 18th of August he put in a petition asking the Court to receive the said deposit in order that the sale might be set aside. On that date the court granted him permission to deposit the full decree money with compensating and the judgment-debtor then deposited Rs. 390-13-6, and the Executing Court entered in the order-sheet.

Judgment-debtor deposited lull decree money with costs act compensation; put up on the date fixed for orders.

2. The date fixed for orders was the 21st of August which had been fixed for the confirmation of the sale. On the 22nd of August the decree-holder filed a petition stating that the full decree money and compensation had not been deposited and thereupon the judgment-debtor asked for time until the 24th August. On the 24th of August the judgment-debtor petitionee stated that he had paid the full amount and costs but that he bad come to learn that Rs. 10 was still due and asked for permission to deposit that amount. Thereafter, the learned Munsif considered the question whether the sale could be set aside on receipt of the extra sum of Rs. 10; he came to the decision that, as the full deposit had not been made within the time prescribed by Section 174 of the Bengal Tenancy Act, the sale could not be set aside under that section.

3. When the case first came before me there was uncertainty whether in fact the amount deposited on the 18th August by the petitioner was insufficient and the Munsif was asked to report after making enquiry. His report has been received and he shows that the amount was short by Rs. 9-0-3. It is argued that the Munsif has been mistaken in entering certain items in his account of the costs. The case of Raghubar Dayal Sukul v. Jadu Nandan Missir (1911) 16 CWN 736 has been relied on, and that shows that it was not incumbent on the judgment-debtor to include within the costs the amount spent by the decree-holder in obtaining a copy of the decree and that a separate vakalatnama was not necessary in execution proceedings. It is clear under that ruling that the Munsif wrongly included the amount of Re. 1-9-0 for obtaining a copy of the decree and Re. 0-8-3 in respect of the vakalatnama, but, even so, the deduction of these amounts would not bring the sum deposited up to the amount of the other itemsin the account. It is clear then that when fcbe deposit was made, the amount required by the provisions of Section 174 of the Bengal Tenanoy Act was not paid in. But I think in the present case one must look to the general circumstances of a case. The judgment-debtor, when permitted to deposit the decretal amount with costs and compensation, went to the execution moharrir who drew up an account apd showed that the amount paid in by the judgment-debtor petitioner was correct and it was on the basis of that account that the sum of Rs. 390-13 6 was deposited. It is true that the petitioner could not protect himself by a mistake made by the execution moharrir, for the execution moharrir, was not authorised to officially acquaint the judgment-debtor with the "amount to be paid. As I mentioned in my previous order, there are many cases, both of this and other Courts, to the effect that a judgment-debtor cannot claim a relief on the ground that he has been misled by information given by a clerk of the Court. But in the present case no order had been passed by the Court as to what the costs were; the judgment-debtor came well within the time allowed for the deposit and obtained the permission of the Court to deposit the amount and not only that, he obtained an order in the order-sheet from the Court that he had deposited the full, decree money with costs and compensation. He was, therefore, permitted to believe he had paid the full amount until after the time allowed for the deposit had elapsed, when the decree-holder came forward and pointed out that the amount was not sufficient. Now, an executing Court is lacking in the due discharge of its duty in entertaining any application to set aside a sale, until it has satisfied itself that the statutory conditions provided by Section 174 of the Bengal Tenancy Act have been fulfilled. This has been laid down. It was the duty of the executing Court, before entering in the order-sheet that the full decrstal amount with costs and compensation had been deposited, to satisfy itself what were the costs to be paid by the judgment-debtor and it appears that the Court took no trouble to find out what those costs should be before making its order Owing to this neglect of duty, the petitioner was lulled into security; the amount short was not very great, and had a proper inquiry been made, the judgment-debtor would have been able to make up the deficit within the time allowed. Jenkins, J., in the case of Chundi Charan Mandal v. Banke Behary Lal Mandal (1899) 23 Cal. 449 said:

In my opinion it is essential to the respondents success that it should be established that he has been prejudiced by the act of the Court and that the mistake which had been made is attributable to that act;

and I think that in the present Case it has been established that the petitioner judgment-debtor was prejudiced by the neglect of the Court to let him know that the amount he had deposited was insufficient. It was clearly the duty of the Court to announce what the costs were. The case of Sarjoo Prasad Missir v. Nanoo Rai (1916) 1 PLJ 459 has been relied on; but that case is distinguishable in this that there the judgment-debtor had failed altogether to deposit the 5 per cent on the purchase money which is required by the Act. It was not a mistake in one of the component parts of the deposit. It was pleaded in that case that the non-inclusion of this 5 per cent was due to a mistake made by the execution clerk and it was found that the petitioner in that case could not rely on a mistake of an execution clerk as an excuse for not paying the 5 per cent deposit. In the present case the execution clerk had made a mistake in reckoning up the costs, and the petitioner had nothing to go upon except the account given him by the execution clerk, the executing Court itself not having stated what the amount of costs were.

4. I think that, in all justice, the application of the petitioner should be granted and that the sale should be set aside. I, therefore, direct that the sale be set aside, the petitioner depositing the amount still in deficit.