1. We think that the order of the Subordinate Judge to sell the property subject to Krishnaier's mortgage was wrong. The Subordinate Judge had previously, with Krishnaier's consent, ordered that the property should be sold free of his mortgage, and that order ought not, on the application of the decree-holder, to have been virtually revoked, and that without notice to, or the consent of, Krishnaier or his representatives or the Judgment--debtor. The Judgment-debtor justly complaints that if the property was to be sold free of incumbrance (as originally ordered) it could be sold in conveniently small lots, for which there would be a larger circle of bidders, and that a higher price would thus have been realized.
2. We may add that on the 29th January 1902, while the sale, which began on the 23rd, was still in progress, the Judgment-debtor obtained an order from the High Court for an interim stay of the sale, and his local Vakil at Kumbakonam informed the Subordinate Judge of the fact, that the order would reach him next day, and asked for an adjournment or rather continuance of the sale until the next day, 30th, but the Subordinate Judge under the erroneous impression that the seven days from the 23rd (during which the sale could be continued without a fresh proclamation) expired on the 29th, refused to grant the application. It is clear that but for this mis-apprehension the Subordinate Judge would have continued the sale on the 30th, and then stayed it, as he was bound to do, on receipt of the High Court order. On these grounds we must set aside both the orders of the Subordinate Judge appealed against, and the order confirming the sale, and direct the Subordinate judge to re-sell the property, after issuing a fresh proclamation in due form.
3. Appellants must have their costs in both courts.