SHENBAGAMUTHU PILLAI Vs. VADUGANATHAN CHETTY

JUDGEMENT

(1.) There was a sale of certain immoveable property in execution of a decree and the 2nd respondent who was not a party to the suit bought that property. He deposited the purchase money within the time allowed by Rule 85 of Order XXI. But it appears that the sale was set aside at the instance of the judgment-debtor. Then an appeal was filed against that order by the decree-holder. He succeeded in the appeal and the result was that the order setting aside the sale was set aside and the sale stood confirmed. After the Order of the first Court setting aside the sale, the purchaser applied for refund of the money and obtained an order for refund and we gather that notice of this application was given to the judgment-debtor and decree- holder, but they made no objection. Four months after the order of the Appellate Court upholding the sale, the respondent purchaser made an application for confirmation of the sale and for permission to pay into Court the Amount of the purchase money which he had withdrawn The District Munsif rejected that application but his order was reversed by the District Judge in appeal. The second appeal is against the order of the District Judge.

(2.) First of all, it is contended by Mr. Ananthakrishna Aiyar for the appellant that when the purchaser withdrew the purchase money from Court, the sale came to an end. To that argument, the simple answer seems to be that the contention that the purchase was put an end to by the contract of the parties which was the only way in which it could be done, was never put forward in any of the lower Courts. What happened was that the purchaser, finding that the sale was set aside for irregularity, thought that he was free to withdraw his money as he did not want to lose interest on that amount. He was not the only party to the bargain. There was the decree-holder and the judgment-debtor both of whom were entitled to insist on the bargain and none of them, it is suggested, agreed that the bargain should come to an end. The contract of purchase, which was concluded on the auction-purchaser s bid for the property being accepted, therefore, held good. The result of the Appellate Court reversing the order of the First Court setting aside the sale had only this effect, that the sale was confirmed and the purchaser was thereupon bound to repay the purchaser money which he had withdrawn. He might be compelled to do so by the decree-holder or judgment-debtor and it was not necessary that he himself should apply for confirmation of the sale. The confirmation of the sale would follow upon the order of the Appellate Court and the purchaser was hound in law to bring into Court the money he had withdrawn.

(3.) The learned Vakil for the appellant urges that the purchaser s application to pay money into Court was barred by limitation. He contends, firstly, that we must proceed on the analogy of Rule 85, Order XXI, and hay that, money must be paid within fifteen days of the order of the Appellate Court. But we do not think that there is any force in such an argument, nor do we think that the ruling reported as Choiodhry Kesri Sahay v. Giani Roy 29 C, 626: 6 C. W, X. 776, has any application. That was a case of an application under Section 310(a) of the old Civil Procedure Code to set aside a sale by the judgment-debtor. on his dopositing money within a certain time. The Calcutta High Court held that, when the litigation was finally concluded on the decision of the second appeal in the High Court, if the judgment-debtor then wanted to have the sale set aside, he must deposit the money within thirty days of the termination of the second appeal. But here the purchaser was only carrying out the order of the Appellate Court and it is difficult to see that there is any true analogy between this case and the case reported as Chowdhry Kesri Sahay v. Giani Roy (1). The District Munsif, who held that the purchaser was bound to pay back the purchase money, thought that he was guilty of laches or delay in waiting for four months to pay in the money. We do not think that this is right. The purchaser apparently had been quite diligent in applying for confirmation of the sale and he has made no default or delay in bringing the money into Court.