JUDGMENT Ghulam Hasan and Walford, JJ. - This is a miscellaneous appeal under Order 43 rule 1 (j) of the CPC from an order passed by the Civil Judge, Partabgarh, setting aside the sale in favour of the appellant. 2. The circumstances giving rise to this appeal are these: The appellant Kishun Lal obtained a decree on the basis of a promote for Rs. 5,164 with costs against Hauuman Prasad, the husband of respondent No. 1. In execution of the decree two houses of the judgment-debtor were sold and purchased by the decree-holder for Rs. 7,300 on 22nd September, 1942, 23rd September being a holiday, the decree-holder deposited on the following day Rs. 5J0 as sale fee and filed a certificate for full satisfaction. On 30th September the judgment-debtor applied that he may be permitted to execute a sale deed in favour of one Phool Chand for Rs. 10,000. It was stated in the application that both houses were worth at least Rs. 25,000.' To this application the intending purchaser was also a party. The Court ordered the purchaser to be produced on the following day when the Court allowed the sale deed to be executed and the sale price sufficient to pay the decree and other charges to be deposited in Court. Lala Phool Chand, the- intending purchaser, was present and was informed of this order. On 3rd October, 1942 a sale deed in respect of one of the houses was executed in his favour. On the same day the decree-holder deposited the remaining sale price Rs. 2,983-11-6 payable to the judgment-debtor. Phool Chand also deposited Rs. 4,300 in Court on 6th October as the amount sufficient to discharge the decree and the penalty of 5 per cent. The balance of the consideration of the sale deed was paid to the judgment-debtor. On the 27th October, 1942 the decree- holder applied to have the sale in favour of Phool Chand set aside and .the sale in his favour to be confirmed. This application was opposed by the judgment-debtor and Phool Chand. The learned Civil Judge set aside the sale, dated 22nd September, 1942, in favour of the decree- holder. Against this order the decree-holder has come up in appeal. 3. Having heard learned Counsel for parties, we are satisfied that the order of the learned Civil Judge cannot be disturbed. This application was opposed by the judgment-debtor and Phool Chand. The learned Civil Judge set aside the sale, dated 22nd September, 1942, in favour of the decree- holder. Against this order the decree-holder has come up in appeal. 3. Having heard learned Counsel for parties, we are satisfied that the order of the learned Civil Judge cannot be disturbed. The question arising for determination, is whether the application, dated 30th September, filed by the judgment debtor asking for permission to execute the sale deed can be treated as one under rule 89 of Order 21 of the Code of Civil Procedure. Rule 89 lays down (I) Where immovable property has been sold in execution of a decree, any person either owning such property or holding an interest therein by virtue of a title acquired before such sale, may apply to have the sale set aside on his depositing in Curt. (a) for payment to the purchaser, a sum equal to five per cent of the purchase money, and (b) for payment to the decree-holder, the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered, less any amount which may, since the date of such proclamation of sale have been received by the decree-holder. 4. The amendment made by this Court to this rule further enlarges its scope and is as follows: the judgment-debtor, or any person deriving title through the judgment-debtor, or any person holding an interest in the property. 5. These words have been substituted for words 'any person' in rule 89 ending with 'such sale'. 6. It has been argued on behalf of the appellant that the application of 30th September, 1942 did not comply with the pro- visions of rule 89 inasmuch as it did not specifically mention that the sale should be set aside. It may be mentioned that by a subsequent amendment made on 7th December, 1942, the words "and that the sale be set aside" were added upon the application of the judgment-debtor but they did not exist in the original application filed on 30th September. It is also urged that the penalty of 5 per cent payable to the purchaser was also not deposited along with the application of 30th September. It is also urged that the penalty of 5 per cent payable to the purchaser was also not deposited along with the application of 30th September. Reliance is placed upon certain cases to show that the riling of an application is absolutely essential and a mere deposit of the amount with- out an application in time is not enough and the sale cannot be set aside. One of these cases is AIR 1925 411 (Oudh) . This is a decision by Mr. Dalai, Judicial Commissioner, as he then was. He followed the decision of the Bombay High Court in Raoji Walad Baburao v. Bansilal Narayan Marwari (1919) 43 Bom.735. A contrary view was, however, taken by a Bench of the Allahabad High Court in Mahboob Khan v. Majid Husain ILR 1939 All. 403 : 1939 AWR (HC) 145 where it was held that the application to deposit the decretal amount and the penalty of 5 per cent on the purchase money must be deemed to be an application not only for the deposit of the money but also to have the sale set aside. It was also held that no further application for setting aside the sale was necessary as the requirements of Order 21 rule 89 were sufficiently complied with by the deposit of the money. The decisions of the Madras High Court in Pachiayae v. Vallimuthu Velan AIR 1925 Mad. 639 and Murugappa Asari Vs. Shanmuga Mudaliar and Another, AIR 1925 Mad 909 which took a more strict view were not followed. Cases holding a view contrary to Mahboob Husain case are 7922 Mad. p. 83, 1926 Mad. 620 and 1940 Pat 87. 7. Upon a consideration of the provisions of rule 89 it seems to us clear that what the law requires is an application to deposit the money and the penalty of 5 per cent. The prayer that an auction sale should be set aside is implicit in the making of the deposit. In the case before us however, there is something more. Here the judgment- debtor asked that he should be permitted to execute a sale deed in favour of a third person. This third person had undertaken to pay Rs. 10,000 in respect of one house alone. Surely no sale deed could be executed in favour of a third person" unless the previous sale in favour of the decree-holder had been set aside. This third person had undertaken to pay Rs. 10,000 in respect of one house alone. Surely no sale deed could be executed in favour of a third person" unless the previous sale in favour of the decree-holder had been set aside. The sale had been made in favour of the decree-holder on 22nd September and the money was deposited by the judgment-debtor and his transferee on 6th October, 1942 well within time. 8. It was also argued that the deposit was made by the transferee who had no interest in the property. But this contention is obviously untenable in view of the amendment made by this Court which clearly lays down that "any person deriving title through the judgment-debtor, or any person holding an interest in the property can make the application and make the deposit." 9. The sale in favour of the decree-holder had not become absolute at the time when the application followed by the deposit was made. Rule 92 says that "where no application is made under Rule 89, Rule 90 or Rule 91, or where such application is made and disallowed, the Court shall mike an order c infirming the sale, and thereupon the sale shall become absolute." 10. It is clear from the above facts that this stage had not been searched before the deposit was made under rule 89. 11. It was also argued somewhat faintly that the deposit not having accompanied the application should not be treated as being in compliance with the provisions of rule 89. We do not think that the deposit in order to be valid must necessarily be made along with the application. It would in our opinion, be sufficient if it is made within 30 days from the date of the sale. 12. Accordingly we hold that the application, dated 30th September, 1942, followed by the deposit of money on 6th October, 1942 must be treated as substantial compliance with the provisions of rule 89 of Order 21. 13. In this view the order setting aside the sale in favour of the decree-holder must be upheld. We dismiss the appeal with costs.