1. Both the Courts have held that the sale held in execution of the decree in Sub-section No. 312 of 1937 in E. P. No. 26 of 1938 was not valid. The District Munsif who tried the suit set aside the sale on four grounds, but in appeal the learned Subordinate Judge held that the decree had to be set aside on two grounds. These two grounds really amount to this, namely, that the decree was executed for an excess amount and to the knowledge of the decree-holder who himself was the purchaser By virtue of Section 15 of Madras Act 4 of 1938 the judgment-debtor obtained benefit of half the rent for faslis 1344, 1345, and 1346. The amount deposited by the judgment-debtor was even withdrawn by the decree-holder. Nevertheless, execution was levied for the entire amount and not for the balance only, and this, in spite of an order of court. Obviously, therefore, the decree-holder who knew that what was due under the decree was an amount far less than the amount for which he brought the properties of the judgment-debtor to sale cannot re-lain the properties purchased at such a sale by himself, whatever might be the case of an innocent third party purchaser. It will really amount to allowing a person who is in the wrong to take advantage of that wrong.
2. Observations in a decision of a Division Bench in -- 'Kasthuri Aiyangar v. Aruna-chalam Chettiar', 34 IndCas 350 were relied upon by learned Counsel for the appellants. In that case the learned Judges held that the levy of execution for the full amount was justified, but went on to say by way of obiter that even if a certain payment had been taken into account, there would still be money due and it could not be said that the court had no jurisdiction to proceed with the execution of the decree. There was no necessity in that case to finally determine the question whether, in circumstances like those in the present case, namely, of a decree-holder himself purchasing the property in execution levied for a much larger amount than what was actually due and to his knowledge, the sale should be allowed to stand. In -- 'Rewa Mahton v. Ramkishen Singh' ILR 14 Cal 18 the purchaser was a third party who could not be impressed with the knowledge of another decree against the decree-holder in the case in favour of the judgment-debtor.
3. I agree with the learned Subordinate Judge in holding that the sale has to be set aside. The second appeal is, therefore, dismissed with costs. Leave refused.