BRIJ KUMAR LAL SAHU Vs. JAGDAMBA PRASAD

JUDGEMENT

(1.) Mr. Seth has explained the facts in his usual clear manner. I am afraid that I am not in agreement with him on the question of law. The facts are somewhat singular. A simple money decree was put into execution by sale of the property of the judgment-debtors. The property was put up to sale on 20 April 1927, and purchased by the decree-holder Bhagwan Das for Rs. 255-6-6. The judgment- debtors were seven, of whom three objected on 19 May 1927. The objection was heard on 2 July, 1927, and time was given to the objectors either to deposit the decree money, or to discover another purchaser who would pay more. These three judgment-debtors out of seven produced one Brij Kumar Lal on 2 August, 1927. This purchaser paid a sum of Rs. 300 on 6 August 1927, and the sale was settled with him and at once confirmed. On 25 August 1927 two of the other judgment-debtors appeared and submitted to the Court that the sale in favour of Brij Kumar Lal was a collusive transaction between the three objecting judgment- debtors and Brij Kumar Lal, and that the sale should, therefore, be set aside. This objection was dismissed by the executing Court, but allowed by the lower Court of appeal. This is a second appeal by Brij Kumar Lal. Before hearing it I took the precaution of having Rs. 300 deposited in Court by the judgment-debtors, so that the purchaser whose money has been removed from the trial Court may not suffer. Mr. Beth desired this Court to hold that the confirmation of 6 August 1927 was confirmation of the sale of 20 April 1927, and that after such confirmation no judgment-debtor can object. He argued that under Order 21, Rule 92, the sale of 20 April 1927 had become absolute. This argument overlooks the fact that the sale confirmed was not the sale held on 20 April 1927 but it was a sale confirmed in favour of a new purchaser for a new sale price. No fresh sale had taken place on non-confirmation of sale in favour of the decree-holder. As the facts stand, a new irregular sale of 6 August was confirmed on that very date. To such a confirmation Rule 92 cannot be applied. To the sale of 6 August the other judgment-debtors had no opportunity of objecting as they were entitled to do under Rule 90, or of paying up of certain items and getting the sale set aside as laid down in Rule 89. The objection made on 25 August was within thirty days of this new sale of 6 August. There cannot be the slightest doubt of material irregularity in the sale of 6 August as it did not comply with the provisions of the Code.

(2.) It was next argued that the items required to be deposited under Rule 89 were not deposited by the objectors of 25 August 1927, and, therefore, the sale could not be set aside under that rule. There is, however, Rule 90 which requires no previous condition of a deposit, and, as. I have already pointed out, there was material irregularity. The proviso is satisfied as the applicants have sustained substantial injury by reason of such irregularity because they were thereby deprived of their proper remedy, and the price fetched must have been considerably lease than the value of the property, when it is considered that the judgment-debtors have undertaken such great expense of litigation and have promptly deposited a sum of Rs. 300 at the direction of this Court.

(3.) There was also another argument advanced by Mr. Seth. He pointed out that the remedy after the confirmation lay in an appeal under Order 43, Rule 1(j). In my opinion such an appeal could not lie as no objection had been specifically allowed or dismissed by the executing Court.