1. In execution of a decree obtained by opponent No. 3 against opponents Nos. 1 and 2, the property in suit was sold by the Collector on January 16, 1926, to the applicant. The judgment-debtor on January 25 deposited into Court the decretal amount with five per cent, of the purchase money under Order XXI, Rule 89, and on the same day an application, Exhibit 22, was made to the Mamlatdar stating that the amount of Rs. 519-12-0 was deposited into Court and praying that the auction should not be sanctioned. On March 22, 1926, the judgment-debtor applied to the Court to set aside the sale. The learned Subordinate Judge held that the application made to the Mamlatdar was really an application for setting aside the sale which ought to have been sent for disposal to the Court, and that the application made to the Court was a continuation of Exhibit 2'J before the Mamlatdar.
2. On appeal, the learned District Judge held that, in view of the deposit of the decretal amount on January 25, the application to the Mamlatdar was practically an application for setting aside the sale and the application to the Court of March 22 might be treated as a continuation of the application to the Mamlatdar.
3. On behalf of the auction purchaser it is contended in this revisional application that the conditions prescribed by Order XXI, Rule 89, were not satisfied, that an application to set aside the sale was, in fact, not made to the Court and therefore under Order XXI, Rule 92, the Court ought to have made the order confirming the sale and ought to have held that the sale was absolute.
4. In Raoji v. Bansilal NarayanI.L.R (1919) Bom. 735: 21 Bom. L.R. 835. no application was made to the Mamlatdar or Collector, or to the Court to sat aside the sale, though a deposit was made in Court of the amount of the decree together with interest on the purchase-money within thirty days of the date of the sale. It was held that the Civil Procedure Code, with the Indian Limitation Act, provides a short period within which applications specifying the object should be made to set aside sales, and the shortness of time allowed may be taken as indicative of the policy of the Legislature that titles arising from judicial sales should be settled as soon as possible. In the present case, however, there was a deposit made in Court within ten days of the sale and an application was made to the Mamlatdar on the same day that the sale should not be sanctioned.
5. In Tipangavda v. Ramangavda I.L.R (1919) Bom. 50: 22 Bom. L.R. 35. an application was made to the Revenue Officer conducting the sale, but no application under Order XXI, Rule 89, was made to the civil Court. It was held that the application being made to a wrong person in the first instance, and not made to the Court, was not a good application. Rule 17 which was then in force was as follows :-
If any application to set aside the sale be made within the time limited by law to the Collector or other Officer aforesaid, he shall refer the applicant to the civil Court.
Under Rule 17 the Collector or other officer conducting the sale had no power to accept the application to set aside the Bale, and it was necessary to make an application to the civil Court. In Tipangavda v. Ramangavda the party was referred by the officer conducting the sale to the civil Court, but no application was made within time.
6. In Gadigappa v. Shidappa I.L.R (1924) Bom. 638: 26 Bom. L.R. 817. reference was made to the hardship and inconvenience which arose in consequence of the wording of the rule and an opinion was expressed that the rule should be amended. Rule 17 was changed into Rule 16 which was in the same terms. But by a Notification in the Government Gazette, Part I, pa go 917, for 1925, Rule 18 was amended as follows :-
If any application to set aside the sale under Order XXI, Rules 89, 90 or 91 of the Civil Procedure Code, and in the case of an application under role 89, the deposit, as required by that rule, be made within the time limited by law to the Collector of other officer aforesaid, ho shall accept such application and deposit), and forward such application and the deposit, if any, to the Civil Court, and inform the applicant accordingly.
7. An application and a deposit, therefore, made to the Collector or other officer conducting the sale must be accepted by such officer and forwarded to the civil Court for disposal. A new rule, Order XXI, Rule 91(A), has been made by the High Court under Section 122 of the Civil Procedure Code, which runs as follows :-
Where the execution of a decree has been transferred to the Collector and the sale has been conducted by the Collector or by an officer subordinate to the Collector, as application under Rules 89, 90 or 91, and in the case of an application under Rule 89, the deposit required by that rule if made to the Collector or the officer to whom the decree is referred for execution in accordance with any rule framed by the local Government under Section 70 of the Code, shall be deemed to have been made to or in the Court within the meaning of Rules 89, 90 and 91.
8. It, therefore, follows that an application under Rule 89 and a deposit required by that rule, if made to the Collector or other officer to whom the decree is referred for execution, shall be deemed to have been made to or in Court within the meaning of Rule 89, Order XXL
9. In the present ease the deposit was made on January 25 and an application was made to the Mamlatdar that the auction should not be sanctioned. Both the lower Courts have considered this application as an application to set aside the sale, though it referred to the applicant's desire to make a separate application to the Court. We think, however, that a reasonable interpretation must be put on Exhibit 22 and hold that both the lower Courts were right in their construction of Exhibit 22 that it was an application made to set aside the sale. As the deposit was made in Court on January 25 and an application was made to the Mamlatdar on the same date, we think that under the new Rule 91(A) of Order XXI the conditions necessary under Order XXI, Rule 89, are satisfied. We think, therefore, that both the lower Courts were right in setting aside the sale. On these grounds we would discharge the rule with costs,
10. The facts and the material dates have been stated in the judgment delivered by my learned brother Patkar J. I think it is clear that the conditions requisite for setting aside the sale were fulfilled in this matter. The deposit of the necessary amount was made within time and the application (Exhibit 22) is substantially one to set aside the sale, though unfortunately it is not accurately drafted. This was also made within time. Under Rule 81(A) made by the High Court in 1925, an application under Order XXI, Rule 89, made to the Collector, or to an officer subordinate to the Collector, is deemed to be one made to or into Court within the meaning of Rule 89. Though it is true there was here a subsequent application made to the Court, which was made out of time, and though both the Courts below have held that it was really a continuation of the original one contained in Exhibit 22, I think it is not actually necessary so to hold, and that all the conditions required for the cancellation of the sale had already been fulfilled. I, therefore, agree that the rule should be discharged.