1. If this matter rested solely on the plea in special appeal there would be no difficulty in disposing' of the case. For if the first Court's order in execution of decree setting aside the sale was final, there could have been no appeal to the Judge, and any order made by him might have been cancelled under Section 35 of Act XXIII of 1861. But here the order made by the Munsif setting aside the sale was not one that could be legally made under Section 257 of Act VIII of 1859, since no material irregularity in publishing or conducting the sale and consequent substantial injury to the objector, by reason of the irregularity, were established. The Munsif's order, therefore, setting aside the sale, because the sale price was inadequate, no material irregularity being proved, was in excess of the power granted to him by the section. But it was certainly not an order made, as the District Judge assumed in miscellaneous appeal, under Section 11 of Act XXIII of 1861, because there was no question arising between the parties to the suit which the Munsif was called upon to dispose of when lie made his order. If it had been such a question, there could have been no separate suit. But here the auction-purchaser having fulfilled all the conditions of the sale, calls for confirmation, which is refused on no legal ground by the Court executing the decree. He had bought the property, and all that was wanting was a confirmation of his title. If no application of a legal character was made to set aside the sale, the Court executing the decree, to use the words of the section, shall confirm the sale. As in this case no objection permissible by Section 256 had been made, the Court executing the decree was absolutely bound to confirm the sale, and as it did not do so but acted in excess of its jurisdiction in refusing to do so, and in cancelling it, it appears that the suit will lie. We are justified in this opinion by a decision of a Division Bench of this Court of the present appeal, No. 1437 of 1876, decided on the 13th March of the present year.* We, therefore affirm the judgment of the Lower Appellate Court and dismiss the appeal with costs.
* In this case the plaintiff sued to establish his right as auction-purchaser to, and to obtain possession of, the property sold 'by auction, by setting aside the orders passed on the miscellaneous side by the first and Appellate Courts which cancelled the said auction sale. The plaintiff added a claim to obtain mesne profits from date of sale to date of possession.
The Lower Courts having on insufficient grounds assumed fraud in the auction sale by reason of inadequacy of price and other irrelevant circumstances, and having held that the orders passed on the miscellaneous side under Sections 256 and 257 of Act VIII of 1859, precluded a fresh suit to establish the auction-purchaser's right to the property, sale of which was annulled, the High Court (Pearson and Turner, JJ.) remanded the case for trial on the merits in a judgment of which the following extract in the material portion:
The order passed by the Muusif on the 10th March 1875, setting aside the sale, and that passed by the Judge on the appeal from it on the 5th June 1875, did not, it would seem, proceed on the ground of any material irregularity in publishing or conducting the sale, and cannot, therefore, in reference to the provisions of Section 257 of Act VIII of 1859 bar the present suit, which the plaintiff is entitled to have tried on the merits. Ho cannot indeed obtain in this suit all the relief he asks for; but if he should succeed in showing that the sale made to him was a valid one which should have been confirmed, he would be entitled to a decree annulling the order abovementioned, and declaring his right to obtain from the Munsif an order confirming the sale, a certificate of the nature described in Section 259, and delivery of the property which was the subject of the sale in the manner provided by Section 263 or Section 264 of Act VIII of 1859.