1. Mr. Seth has explained the facts in his usual clear manner. I am afraid that I am not in agreement with him on the question of law. The facts are somewhat singular. A simple money decree was put into execution by sale of the property of the judgment-debtors. The property was put up to sale on 20th April 1927, and purchased by the decree-holder Bhagwan Das for Rs. 255-6-6. The judgment-debtors were seven, of whom three objected on 19th May 1927. The objection was heard on 2nd July 1927, and time was given to the objectors either to deposit the decree money, or to discover another purchaser who would pay more. These three judgment-debtors out of seven produced one Brij Kumar Lal on 2nd August 1927. This purchaser paid a sum of Rs. 300 on 6th August 1927, and the sale was settled with him and at once confirmed. On 25th August 1927 two of the other judgment-debtors appeared and submitted to the Court that the sale in favour of Brij Kumar Lal was a collusive transaction between the three objecting judgment-debtors and Brij Kumar Lal, and that the sale should, therefore, be set aside. This objection was dismissed by the executing Court, but allowed by the lower Court of appeal. This is a second appeal by Brij Kumar Lal. Before hearing it I took the precaution of having Rs. 300 deposited in Court by the judgment-debtors, so that the purchaser whose money has been removed from the trial Court may not suffer. Mr. Beth desired this Court to hold that the confirmation of 6th August 1927 was confirmation of the sale of 20th April 1927, and that after such confirmation no judgment-debtor can object. He argued that under Order 21, Rule 92, the sale of 20th April 1927 had become absolute. This argument overlooks the fact that the sale confirmed was not the sale held on 20th April 1927 but it was a sale confirmed in favour of a new purchaser for a new sale price. No fresh sale had taken place on non-confirmation of sale in favour of the decree-holder. As the facts stand, a new irregular sale of 6th August was confirmed on that very date. To such a confirmation Rule 92 cannot be applied. To the sale of 6th August the other judgment-debtors had no opportunity of objecting as they were entitled to do under Rule 90, or of paying up of certain items and getting the sale set aside as laid down in Rule 89. The objection made on 25th August was within thirty days of this new sale of 6th August. There cannot be the slightest doubt of material irregularity in the sale of 6th August as it did not comply with the provisions of the Code.
2. It was next argued that the items required to be deposited under Rule 89 were not deposited by the objectors of 25th August 1927, and, therefore, the sale could not be set aside under that rule. There is, however, Rule 90 which requires no previous condition of a deposit, and, as. I have already pointed out, there was material irregularity. The proviso is satisfied as the applicants have sustained substantial injury by reason of such irregularity because they were thereby deprived of their proper remedy, and the price fetched must have been considerably lease than the value of the property, when it is considered that the judgment-debtors have undertaken such great expense of litigation and have promptly deposited a sum of Rs. 300 at the direction of this Court.
3. There was also another argument advanced by Mr. Seth. He pointed out that the remedy after the confirmation lay in an appeal under Order 43, Rule 1(j). In my opinion such an appeal could not lie as no objection had been specifically allowed or dismissed by the executing Court.
4. An irregular proceeding is certain to cause injustice to some person or other, and this Court can only decide on a balance of such injustice. In the present case I am of opinion that there will be less injustice in paying off Brij Kumar Lal and setting aside the sale than in permitting the irregular sale of 6th August 1927 to have operation.
5. In the result I dismiss this appeal and direct the sum of Rs. 300 deposited in this Court to be paid over to Brij Kumar Lal Sahu on proper application.
6. Having regard to the facts of the case I direct that all parties shall bear their own costs throughout.
7. Permission is granted to file a Letters Patent appeal.
8. Mr. Ambika Prasad desires me to say that according to him no appeal lies, and that the point has not been decided above. This may be held to be important in a Letters Patent appeal, though not here. This Court, as a question of jurisdiction has been raised, could have interfered by way of revision because the allegation was that the trial Court had acted without jurisdiction. This observation is made to permit Mr. Ambika Prasad to raise the same argument over again in case a Letters Patent appeal is filed.