1. This is an appeal from an order directing a sale to be set aside. Under the mortgage decree, which was in execution, the property mortgaged consisted of a one-third share in 12 biswas and odd in the village in dispute. This share was situated in a certain patti, but in the sale proclamation the share advertised for sale was stated to be 7 biswas 13 biswansis share in that patti, and then the area and the revenue of the entire patti were given. The sale was accordingly completed of the 7 biswas, 13 biswansis share in that patti. The judgment-debtor applied to the Court for setting aside the sale on the ground that the decree did not direct the sale of so large a share. This application has been allowed and the entire sale set aside.
2. A preliminary objection is taken to the appeal that this was not an application under Order 21, Rule 90 but was under Section 151 of the Code and, therefore, no appeal lies. We, however, think that the application must be treated to be one under Section 47 of the Code of Civil Procedure because the sale had taken place in contravention of the decree and the property sold was in excess of that ordered to be sold. Under such circumstances an appeal would lie.
3. It cannot be disputed that the sale of 4 biswas and odd share alone could have been ordered, and not of the 7 biswas 13 biswansis. That being so, the sale of the there in excess of 4 biswas and odd was absolutely illegal.
4. Mr. Gulzari Lal, the learned Counsel for the appellants, has properly offered to pay the whole of the sale price for one-third of 12 biswas odd which could have been properly sold and which he says his clients are willing to retain. Under these circumstances we allow the appeal in part and modifying the order of the Court below direct that the sale be confirmed with regard to one-third of 12 biswas and odd only on payment of the amount fetched at the auction-sale and that the sale with regard to the remainder be set aside. We direct the parties to bear their own costs of this appeal.