(1.) These two matters both arise out of a decree passed in 1929 for Rs. 23,799. On 6 July, 1935, in execution of that decree, a sale was held of two items of property. Item I was an inam village, item 2 was a less valuable property. An application was preferred under Order 21, Rule 90, Section 47 and Order 21, Rule 72(3) of the Civil Procedure Code, to set aside the sale. That application was dismissed by the lower Court on 6 March, 1943, in so far as: it related to the first item. On 18 March, 1943, the judgment-debtors filed an application under Section 19 of Madras Act IV of 1938, praying the Court to scale down the decree on the footing that they were agriculturists. The decree-holder objected that they were not agriculturists and that the decree had been fully satisfied by the sale which had just been confirmed. On 22nd March, 1943, the trial Court, without giving a finding on the question whether or not the applicants were agriculturists, dismissed the application on the ground that no decree subsisted. Against the order dismissing the application to set aside the sale CM.A. No. 372 of 1943 has been filed. Against the order dismissing the application under Section 19 of Act IV of 1938, C.R.P. No. 756 of 1943 was preferred. By reason of the amendment to Madras Act IV of 1938 under,Madras Act XV of 1943, the order under Section 19 has become retrospectively appealable. The Civil Revision Petition has therefore been treated as a civil miscellaneous appeal, there being no question of any payment of deficit Court fee.
(2.) We will first deal with the contentions in C.M.A. No. 372. We must say at once that we do not consider that there are any grounds for setting aside the sale by reason of any material irregularity resulting in substantial injury. The irregularities upon which reliance is placed are two. Firstly, the Court ordered when each party placed a valuation on the property and the valuations were widely different, that the sale proclamation should embody both the valuations. By some oversight this direction was not carried out and the sale proclamation merely noted the figure of the upset price which was considerably higher than the valuation given by the decree-holder and considerably lower than the valuation given by the judgment- debtors. When the sale was held subject to this upset price for Rs. 30,000, there were no bidders. The upset price was subsequently reduced to Rs. 20,000 and the property was eventually sold to the decree-holder for Rs. 21,000. There are really no materials upon which we can hold that the price was inadequate or that the inadequacy of the price, if any, was due to this omission to publish these two widely divergent estimates of the value of the property. The other irregularity relied upon under Rule 90 is based on the fact that by some oversight, the amount of the decree was overstated in the sale proclamation. The decree-holder, having been allowed to bid and set off and the amount of the decree as stated in the proclamation being more than the amount of the price bid by the decree-holder, there was no cash deposit required from the decree-holder. The mistake was discovered eventually and the excess of the sale price over the true amount due under the decree was immediately deposited, but not within the fifteen days contemplated in Order 21, Rule 85 of the Civil Procedure Code. Granted that there has been an irregularity in this respect, it is difficult to see how it has occasioned any injury to the judgment-debtor. The effect of the overstatement of the amount of the decree was to make the decree-holder pay more for the property than he would presumably have paid otherwise and there is no basis for the assertion that the decree-holder was put into a position to drive other bidders away.
(3.) Turning to the contention that the sale should be set aside by reason of the provisions of Order 21, Rule 72(3), Civil Procedure Code, the facts are as follows : Before the first attempt to sell the property was made when the upset price had "been fixed at Rs. 30,000, the decree- holder filed an application for permission to bid and set off his decree. There was no objection to this prayer and permission was granted in the following words: "Permission to bid for upset price fixed granted." This order is dated 20 October, 1933. On the actual date of the first attempt to sell, the Court, at the request of the decree-holder passed a specific order giving permission. to set off, without any further qualification. This sale being unsuccessful there was a reduction of the upset price and a resale. Apparently by oversight there was no fresh application for leave to bid and set on . But the right of the decree-holder to bid at the sale was not questioned until,after the sale had been held. The trial Court has held that the grant of permission to the decree holder to bid :? for the upset price fixed " must be read as conferring a right to bid, not only at the upset price fixed at that time but at any upset price which might be fixed thereafter. It seems to us that that is not a very probable interpretation of the intention of the Court when this order was passed. Probably the order was so worded in order to limit the permission to the decree-holder to bid on the basis of a starting price of Rs. 30,000 and not to confer an unlimited permission to bid regardless of the starting price which might be fixed thereafter. However, under Order 21, Rule 72, Civil Procedure Code, when the decree-holder purchases without permission, the Court may, if it thinks fit, set aside the sale. There is no obligation, on the Court to do so. In the circumstances of this case we are of opinion that the decree-holder had no intention to bid at the sale without permission. He, was probably unaware"that the permission already given did not extend to the resale and in this view we do not consider that it is a case for ordering a resale, We do not, however, propose to pass any final order on C.M.A. No. 372 of 1943 at this stage, because to do so may seriously prejudice the judgment-debtors in the connected application for relief under Section 19.