(1.) This purports to be a Letters Patent appeal from an order of a Judge of this Court dismissing what had been styled by the appellant an execution second appeal which the learned Judge thought should have been headed as a second appeal from order. It appears that the decree-holder held a simple mortgage decree against certain judgment-debtors and attached some property alleging that it belonged to his judgment-debtors. This property was put up for sale and was purchased at auction by the contesting respondents. No application for setting aside the sale was made within 30 days by the auction-purchaser with the result that the sale was ultimately confirmed by the Court. Subsequently a third party brought a suit for a declaration that the property which had been attached and put up for sale had not belonged to the judgment-debtors at all but is his own property. To this the auction-purchaser was made a party. The suit was decreed and it was held that the property had not belonged to the judgment-debtors at all.
(2.) Upon this the auction-purchaser filed an application purporting to be under Order 21, Rule 91, Civil P.C., to the Execution Court asking for the sale to be set aside on the ground that the judgment-debtors had no saleable interest at all and for a refund of the purchase money paid by them. The first Court dismissed the application holding that an application under Rule 91 could lie only before the confirmation of the sale and that after the confirmation of the sale, it was not maintainable and further holding that the application was barred by time.
(3.) On appeal the District Judge has allowed the application. In his opinion an application under Order 21, Rule 91, could be filed even after the confirmation of the sale and the proper article applicable was 181 and not 166 of the Limitation Act. He has relied on the authority of Gopal Saran Narain Singh V/s. Muhammad Ahsan (1910) 6 I.C. 804. In that case the property had been sold in September 1907, and the sale was first set aside in that very month, though in appeal later on the sale was accepted and confirmed under a compromise in 1909. The rights had therefore been acquired by the auction-purchaser by the sale in 1907 and under Section 6(c), Imperial General Clauses (Act 10 of 1897), the provisions of the old Act might well have been considered to be still applicable. On the other hand, in Muthukumaraswami Pillai V/s. Thevan 1927 Mad. 394, it has been held that an application for setting aside a sale made more than 30 days after the sale was barred by. Art. 166, Limitation Act, and further that no application under Rule 91 could be made after the confirmation of the sale.