1. This is a judgment-debtor's appeal. Certain property was advertised for sale and the estimated value of that property as entered in the sale proclamation by the Court was Rs. 8,000. On the 20th of April 1926, the property was actually sold for Rs. 14,000 and the decree-holder purchased the property at the auction, The amount, which was due to the decree-holder as entered in the sale proclamation, was Rs. 13,671-6-4. On the 17th of May 1926, the judgment-debtors executed a mortgage in favour of Ram Kumar and others of the share sold at auction on the 20th of April 1926, for a sum of Rs. 10,000. On the 18th of May 1926, two applications were presented to the Subordinate Judge. One was by Ram Kumar and others as mortgagees, who tendered and deposited a sum of Rs. 10,000 and in their application stated that if the judgment-debtor did not deposit the balance payable and if the sale was not set aside, this sum might be returned to Ram Kumar. The judgment-debtors in their application stated that a sum of Rs, 10,000 had been deposited by the mortgagees under a tender and that they were depositing a sum of Rs. 4,810 and prayed that the sale be set aside and also stated that the total amount was more than the amount payable under the law to the decree-holder. They, therefore, prayed that the remaining amount might be returned to them.
2. The office reported for the information of the Judge that the amount deposited was correct and that out of that total amount Rs. 10,000 had been deposited by the mortgagees and Rs, 4,810 by the judgment-debtors, On notice of this application of the judgment-debtors having been served on the decree-holder, they objected on the ground among others that there was no compliance of Order 21, Rule 89 inasmuch as the whole amount had not been deposited by the judgment-debtors and that the mortgagees had no locus standi to make any deposit. They further urged that the deposit being a conditional deposit could not be treated as a valid deposit. The learned Subordinate Judge has declined to set aside the sale by his order of the 14th of June 1926, which is under appeal. He has held:
If there had been a joint application cm behalf of the judgment-debtor and the mortgagees then there would not have been any difficulty.
3. He has also held that the deposit made by the mortgagees was not on behalf of the judgment-debtors.
4. We are of opinion that the two applications must be treated on the whole as one. The application of the judgment-debtors clearly referred to the fact of the deposit having been made in the name of the mortgagees. The mortgagees independently may not have been able to apply to have the sale set aside, but we are of opinion that the transaction must be treated as one and that the judgment-debtor complied with the provisions of Order 21, Rule 89 by depositing the whole amount within thirty days. The plea that the deposit was a conditional deposit is really without any force as the condition only related to what would happen in case the learned Subordinate Judge did not set aside the sale, and we think that it was not a condition precedent to anything to be done by the Court. The case of Sarvi Begam v. Haidar Shah  9 A.L.J. 12 is clearly distinguishable. In that case there was no application by the judgment-debtor at all. The amendment of the rules by the rule-making power has made the point raised in this case clear. We think, however, that the costs of this appeal should be paid by the appellant. We, therefore, set aside the sale of the 20th of April 1926. The decree-holders will be paid the amount due to them by the Court.