NAKCHEDI SAHU Vs. BISHUN LAL SINGH

JUDGEMENT

(1.) THIS is an appeal by the judgment-debtors Nos. 3 and 4 against an order of the Subordinate Judge of Hazari-bagh dated January 30, 1936, refusing to make an order on a petition by the defen-dants in the following circumstances. It seems that the decree-holder sued on a mortgage-bond against the executants of the mortgage who were defendants Nos. 1 and 2 and impleaded the appellants, judgment-debtors Nos. 3 and 4, who were the subsequent mortgagees. The decree-holder sold the mortgaged property on August 8, 1934. There was a petition under Order XXI, Rule 90, Civil Procedure Code by all four of the judgment-debtors to set aside the sale. THIS matter was compromised on May 31, 1935 and the terms of I he compromise are simple though somewhat peculiar. Under the. terms, the arrangement was that the confirmation of the sale should be postponed until September 30, 1935. It was further agreed that if a sum of Rs. 11,550 should be paid on or before that date, then the decree-holder was to reconvey to the mortgagors the property in question. If, on the other hand, the amount was not so paid, then an that event also the sale was to be confirmed,

(2.) ON September 26, the judgment-debtors, the mortgagors, petitioned to say that they had found a purchaser and asked that the decree-holder might be ordered to execute the kobala and take the money and they further complained that the auction-purchaser had refused to take a copy of the petition. Defendants Nos. 3 and 4 stated that they had made a tender of payment on the 28 which was refused. The learned Judge on this petition declined to direct the decree- holder to execute the kobala mentioned and in this matter he was undoubtedly right. Under the terms of the compromise, he was bound to confirm the sale in any event whether the money were paid on the required date or not. He had no further powers, being limited to the mere question of either confirming the sale or setting it aside and by the arrangement between the parties even his powers in this choice were limited and he was compelled to confirm the sale. If a term of the compromise has been broken by one of the parties, that is a matter which can only be remedied by a suit on the part of the injured party,, An executing Court has merely got the business of confirming or refusing to confirm a sale and there is moreover no power on the part of this Court to entertain an appeal in any matter other than a refusal to confirm the sale or an order confirming the sale. This appeal, therefore, necessarily fails and must be dismissed with costs. The appeal of the judgment-debtors has no merits of any kind and must also be dismissed with costs.