1. This is a rather extraordinary case. On 2-9-1957 there was a sale in execution of the decree in O. S. No. 214 of 1952 on the file of the District Munsif's Court, Tiruchirapalli. The auction purchaser, who is the appellant in this appeal, deposited 25 per cent of the price. Within the time limited by law and the conditions of the sale proclamation he deposited the balance of 75 per cent in the treasury. This was on 14-9-1957.
But unfortunately the purchaser, who did not engage or was advised by a legal practitioner and who, I am told, was illiterate as well, did not know the rules of court under which the receipt issued by the treasury should have to be lodged in court. Rule 158 of the Civil Rules of Practice provides for the payment of the purchase price into the bank or treasury, the receipt from which should be deposited in court. The appellant appears to have thought that the receipt was intended for his Own purposes.
He did not put it into court. On 14-10-1957, the court, not having been apprised of the fact that the purchaser had performed his obligations in its entirety, directed a resale of the property. By that older the executing court fixed the resale for 16-12-1957. The appellant, coming to know that the property was to be sold afresh, rushed up to the court. On 18-11-1957 he filed an application to the executing court under Order 47 Rule 1 C. P. C. praying that the court might review the order for sale passed on 14-10-1957, and filing the treasury receipt into court.
Although the sale was yet to take place, the learned Subordinate Judge of Tanjore strangely enough dismissed the application. It must be noticed that the appellant had deposited the money in time. There was no doubt an irregularity committed by him in that he had not filed the treasury receipt in court in time. When the appellant apprised the court that he had really paid the amount of the purchase money, it was the plain duty of the executing court to rectify its own mistakes and recalled the order for sale.
But that is not what the executing court did. It allowed the sale to proceed. The decree-holder himself purchased the property. Disappointed with the order of the executing court, the appellant filed an appeal to the District Judge, Tanjore. The learned District Judge upheld the order of the executing court. He held that for a due compliance of the provisions of Order 21 Rule 86 C. P. C. the production of the chalan in accordance with Rule 158 of the Civil Rules of Practice was necessary. That may be so.
The learned District Judge failed to note that it was the duty of the executing court on being informed that the entire price had been paid in time to rectify the mistake and relieve the party against injustice subject to such terms as it might deem fit to impose in the circumstances of the case. The learned District Judge further held that as the executing court had refused to grant a review its order for resale no appeal could be entertained by it. In this the learned District Judge was in error.
The application for review of the order was filed under Section 47 C, P. C. as well. As at the time the application was filed the resale had not taken place, the auction purchaser who represented the interest ok the judgment debtor could properly maintain the application, as the matter would he intimately connected with the question of discharge of the decree. The learned District Judge has pointed out that no interference with the order of resale was possible as the property had actually been resold.
The learned Judge failed to notice that in the resale it was only the decree-holder that purchased the property, and if the court sets aside the order as it should have done in the circumstances restitution by delivering back the properly to the appellant would he possible. I am therefore of opinion that the lower court should not have directed the resale as if the appellant was in default in the payment of the balance of the purchase money, but instead should have granted the application out of which this appeal arises, subject to such objections as the decree-holder may like to urge.
2. Mr. Viswanatha Iyer, learned counsel for the respondent, brought to my notice that no notice of the review petition was given by the executing court to the decree-holder and that therefore no final order should be passed without giving him an opportunity for showing cause against the granting of the review. Such opportunity should be deemed to have been given when notice of the appeal in the District Court and of this court went to him. The decree-holder has also been heard.
3. I therefore set aside the orders of the lower courts and direct the petition to be restored to file in the Sub Court of Tanjore and disposed of after notice to the decree-holder, auction-purchaser, on the question of the disposal of the sale proceeds of the first sale and for giving directions for delivery of property, to the appellant. There will be no order as to costs.