CHOWDHRY KESEI SAHAY Vs. GIANI ROY

JUDGEMENT

(1.) This case comes before me Under Section 575 of the Civil P. C. by reason of a difference of opinion between Mr. Justice Ghose and Mr. Justice Brett. The facts are not in dispute, and the point is really a very short one. Certain property in certain execution proceedings was put up for sale on the 22 May, 1900 and purchased, as I understand, by the decree-holder. On the 25 May the Munsiff held that there was no sale by reason of certain irregularities, a on the 26 May the judgment-debtor deposited in Court decretal amount with cost Section On the 29 May the execution case was struck off. The decree- holder, the purchaser, appealed, and on the 2 August, 1900 the order of the Munsiff setting aside the sale was reversed and the sale was held to be a good one. The judgment-debtor filed a second appeal against that decision on the 15 August 1900. On the 5 September 1900 that appeal was dismissed Under Section 551 of the Code. On the i2 September an application was made by the judgment-debtor to set aside the sale Under Section 310A on his depositing the five per cent, on the purchase-money necessary under that section. That application was rejected by the Munsiff, upon the ground that the money was not tendered within. 30 days from the date of sale. That order was affirmed on the 29 of January by the District Judge. The judgment-debtor appealed to the High Court, and on the 16 of April 1902 the present difference of opinion arose between the learned Judges I have named, and the matter now comes before me.

(2.) The question appears to me to be shortly this: What is meant by the words "date of sale" in Section 310A. of the Code ? I need not read that section, the terms of which are familiar to most of u Section It enables a person, whose property has been sold, to apply at any time within thirty days from the date of sale" to have it set aside on complying with certain condition Section I think the date of sale was the 22 May, 1900, when the property was put up for sale and knocked down to the highest bidder, and both the learned Judges seem to take that view. It has been suggested that the date of sale means the date when the sale was confirmed, and reference was made to the case of Baijnath Sahai V/s. Ramgut Singh (1896) I. L. R. 23 Cale. 775; L. R. 23 I. A. 45. I do not think that that case has any bearing upon that now before me. That decision turned upon the question what was the date of the confirmation of the sale within the meaning of Art. 12 of the Indian Limitation Act. It is difficult to say, if the 22 May, was not the date of the sale, what the date of the sale really wa Section I am unable to accept the suggestion that the date of the sale was either the 2 August, 1900, when the order of the District Judge was made, or the 5 of September 1900, when the appeal from that decision was dismissed under Section 551. I think it must be the date when the property was actually sold. If it were the 2nd August, it would not assist the, present appellant, for the application under Section 310A was not made within 30 days from that date.

(3.) It is said that the judgment-debtor could not have applied under Section 310A to set aside the sale within 30 days, because the Munsiff had held that there was no sale. It is true that the Munsiff held that the sale was bad, but that order was liable to reversal on appeal. Under these ciroumstances the judgment-debtor would have been prudent, if he had made his application under Section 310A within 30 days from the 22nd May, in which event he would have been insured, so to say, against a reversal of the Munsiff's order. If the Court had then refused to accept the money by reason of its own mistake, different considerations might have arisen. But this did not happen. If the judgment-debtor could not have made the application by reason of there having been no sale, then the case is outside the section altogether, but unfortunately for him there was a sale, and he did not make his application within 30 days of its date.