1. This is a judgment-debtor's appeal and arises in the following circumstances:
2. The respondent, Lachmi Narain, obtained a simple money-decree on the 18th May 1927 against the appellant Ohifcar Singh. Certain house property was attached in execution of the aforesaid decree, and was sold on the 29th October 1927, when the decree holder himself was declared to be the purchaser for a sum exceeding the decretal amount, so that he was bound to pay the balance in cash within 14 days after the date of sale. The decree-holder found that he had made a bad bargain, and attempted to have the sale set aside. He applied, under Order XXI, Rule 80, Otvil Procedure Code, for the sale being set aside on the ground of fraud and material irregularity. The court set aside sale, not on any of those grounds, but on the ground that the auction-purchaser (decree holder) had not paid the entire purchase-money within the time allowed by law. As part of the same order, the court directed re-sale of the property under Order XXI, Rule 88, Civil Procedure Code. The judgment-debtor was deadened with this order, as he maintained that the sale should have been confirmed and the auction-purchaser made to pay the difference between the excretal amount and the amount of his bid. Accordingly he appealed to the learned District Judge, who held on 10th March 1928 that the sale should be confirmed and the decree-holder directed to pay the difference between the decretal amount and the prica. The decree-holder preferred a second appeal to this Court (No. 133 of 1928) impugning the correctness of the order dated 10th March 1928. This court ruled that the order confirming the sale was not justified by law and that the order of the court of first instance directing re-sale of the property was the proper order. It was pointed out that the provisions of Order XXI, Rule 86, Civil Procedure Code, are mandatory and that, on the failure of the auction-purchaser to deposit the entire purchase-money within the time allowed by law, it is imperative on the court to have the property re sold. Sometime after the receipt of a copy of this Court's judgment, the Subordinate Judge recorded an order to the effect that as nothing had been done by the decree-holder for the further progress of proceedings for re-sale, they should be struck off. The decree-holder was unwilling to have the property re-sold and had, in fact, applied to the court that his application for execution be dismissed. The judgment-debtor appealed to the District Judge from the order of the Subordinate Judge refusing to have the property re-sold. The learned District Judge dismissed the appeal, holding that two previous orders passed by the Subordinate Judge, one dated 28th March 1928 and the other dated 31st March 1928, operated to bar the judgment-debtor's prayer for re sale of the property. The present appeal is from the order of the District Judge mentioned above.
3. It is contended on behalf of the decree-holder that no property can be sold in execution of a decree except oh motion made by or on behalf of the decrea-holder. We think that this contention is unsound. It is true that an application for execution of a decree should be made, and is generally made, by the decree holder, who alone is interested in obtaining satisfaction of the decree; but onca the initial step has been taken by the decree-holder and an application for execution of decree has been made and a sale in pursuance thereof has taken place ;but the sale becomes abortive in consequence 'of the decree holder not fulfilling his.' obligation as an auction-purchaser, the law casts as imperative duty on the court to have the property re-sold and to recover the balance from him as a defaulting auction-purchaser. There is nothing in law to justify the view that re-sale should not take place unless the court is moved by the decree-holder. Indeed in a case like this the decree-holder is interested in avoiding the re-sale of the property. If no further proceedings take place, there will be no occasion for the deficiency in the price being made good by him. On the other hand there will be nothing to prevent the decree-holder from making a second application for execution by attachment and sale of the same property. If the view contended for by the decree-holder is correct, the provisions of Order XXI, Rule 86, Civil Procedure Code, can be easily circumvented where the decree holder is the purchaser. We have no doubt that such a reading of Order XXI, Rule 86, Civil Procedure Code, is wholly unwarranted. As already stated, the law has laid a duty on the court to re sell the property, and any one who is interested in having the property re-sold can move the court to do what is its duty. For these reasons, we hold that the learned District Judge was wrong in upholding the order of the Subordinate Judge, who refused to re sell the property in the absence of a prayer by the decree-holder in that behalf.
4. The orders, dated 28th and Slat of March 1928 do not, as the learned District Judge is inclined to think, operate as a bar to the judgment-debtor applying to the court to re sell the property. These orders were passed shortly after the order of the Subordinate Judge dated 10th March 1928, which had been challenged by the judgment-debtor in appeal to the District Judge His position then was that no resale Should take piece bat that the sale already held should be confirmed. Accordingly he could not appeal from those orders consistently with his appeal from the order dated 10th March 1928. These orders were passed on miscellaneous applications, one presented by the judgment-debtor, who complained that the decree-holder was not willing to deposit the expenses of re sale and that he should be permitted to pay such expenses, and the other made by the decree-holder praying for execution proceedings to be shelved. The order dated the 28th March 1928 refused to allow the judgment-debtor to pay the expenses of re-sale and incidentally remarked that it is the decree-holder who if he desires to have the property re-sold, should, deposit the expenses of the sale. The order, dated 3let March 1928, allowed the application of the decree-holder praying for execution proceedings being struck off. The order of this Court, passed in second appeal on the 18th April 1929, must be deemed to have abrogated all interlocutory orders passed since the order dated the. 10th March 1928. Moreover such interlocutory orders can? be challenged in the appeal from the final order refusing to re sell the property. We are of opinion that the orders of} 28th March 1928 and 31st March 1928 did, not, any way, bar the judgment debtor's replication asking the court to act in accordance with the mandatory provisions of Order XXI, Rule 86. Civil Procedure Code.
5. The result is that this; appeal, successes. It is accordingly allowed with costs through out. The orders of the courts below; refusing to have the property, re sold, are, set aside. The court of first instance shall, proceed with proceedings for re sale according to law.