1. The decree-holder in this case having obtained a decree brought one item of the judgment-debtor's property to sale and himself purchased the property. The defendant owned two pieces of land bearing different survey numbers and in executing his decree the plaintiff purported to attach one of these pieces but in describing that piece mentioned the survey number and the extent of one of the two pieces and the boundaries of the other piece. Under these conditions the sale was confirmed and a sale certificate issued under the same erroneous description. The decree-holder applied for delivery of possession of the property comprised within the boundaries stated in the execution petition saying that the survey number and the extent had been wrongly given. That application was dismissed as the number given was wrong, Then the decree-holder filed an application to amend the sale certificate by substituting the right number and the extent of the land comprised within the boundaries. The judgment-debtor opposed this, but by consent of both parties the sale was set aside on 1st May 1928. The judgment debtor, who took time for complying with the decree, did not pay, and when the decree-holder filed an execution petition for recovery of the decree debt together with the costs of the prior execution proceedings, the judgment-debtor opposed the petition contending that the order setting aside the sale was passed without jurisdiction and therefore the execution petition was not maintainable. The learned District Munsif allowed the execution to proceed and his order was confirmed on appeal by the Principal Subordinate Judge. Against this the judgment-debtor has preferred this second appeal.
2. The only ground taken is that the sale having been confirmed, the Court had no jurisdiction to set it aside. Reliance is placed on Radha Kishen v. Hari Singh AIR 1927 Lah 337, Bihari Lal v. Ramchand (1928) 110 IC 773, Collector, Ahmednagar v. Rambhau, AIR 1930 Bom. 392 (F B), Nanhelal v. Umrao Singh and Jagannadha Rao v. Basavayya AIR 1927 Mad 835 and for the position that consent of parties cannot confer jurisdiction which does not exist Minakshi v. Subramanya (1888) 11 Mad 26 is quoted. I do not think that any of these rulings applies to a case of this sort. Radha Kishen v. Hari Singh AIR 1927 Lah 337 is a decision by a Single Judge where the Court had set aside a sale which was confirmed on the ground that the balance of the purchase money had not been paid. The time for payment of the balance of the purchase money can be extended with the consent of the parties. Obviously in such a case the Court could not set the sale aside. Bihari Lal v. Ramchand (1928) 110 IC 773 is a case by the same Judge and merely alludes to the former decision. AIR 1930 Bom. 392 is a Full Bench case but is on a quite different matter. A sale certificate granted to the purchaser by the Court had only a four annas stamp though it should have borne a stamp of eight annas. It was held that when the Judge had signed the certificate on the first occasion he was functus officio and therefore he was not acting judicially in allowing the second four annas stamp to be attached. Nanhelal v. Umrao Singh is a Privy Council case. There, when the sale had been confirmed, the decree-holder and the judgment debtor tried to defeat the purchaser's right by saying that the decree had been satisfied out of Court. No application had been made under O.21, Rule 92, and their Lordships held that it was obligatory on the Court to confirm the sale. Jagannadha Rao v. Basavayya AIR 1927 Mad 835 was a case where the decree-holder purchasing the property found that the judgment-debtor had no saleable interest. Instead of asking the Court to set aside the sale under Order 21, Rule 91, Civil P. C, he asked for execution of the decree. It was argued that the decree was not satisfied because the judgment-debtor has no saleable interest in the properties sold and the decree-holder had consequently failed to get possession. This view was negatived and it was held that he must take the remedy allowed under the Code. None of these cases is like the present.
3. For the respondent has been quoted Krishna swamy Chetty v. Sitarama Chetty (1912) 17 IC 513 a case where the plea of limitation had been given up and the defendant admitted his liability before the Court. It was held that he cannot afterwards turn round and plead that the suit had become barred by limitation. In Bunwari Lal v. Abdul Ghafur Khan (1909) 1 IC 48 the parties to the decree came into Court with an agreement to alter its terms and the Court passed an order modifying the terms of the decree in accordance therewith. It was held that both parties were estopped from denying the validity of the order. In Dinonath Sen v. Gooroochurn Pal (1874) 21 WR 310, a judgment-debtor entered into an agreement with his judgment-creditor for the payment of the amount due under the decree with interest by instalments, and the parties acted upon the arrangements as if it had become part of the decree to the extent of moving the Court to credit payment made in satisfaction thereof. It was held that the judgment-debtor was precluded by his own conduct from saying that the judgment-creditor is bound to execute the original decree or to bring a regular suit upon the kistbundee. A case very similar to the present is Ramprasad v. Ram Charan Singh (1915) 27 IC 601, where after a sale in execution of the decree, the decree-holder was paid the amount of his decree and there was a concurrent wish of the parties that the sale should be set aside. It was held that the Court although not warranted by any provisions of Rule 89 and onwards of Order 21, Civil P. C, to set aside the sale, might treat the sale as being of no effect and might decline to confirm it. Jenkins, C.J., says:. the decree-holder was paid by the judgment-debtor the decretal amount. That decretal amount was accepted by the decree-holder in full satisfaction of his decree and the decree-holder, as any honest man would do, brought this to the notice of the Court and asked that the sale should be set aside. The learned Judge before whom this reasonable application was made seems to have felt that his action was paralyzed because this particular predicament did not fall within the precise words of Rule 89 and onwards of Order 21. But I venture to think that where a case of this kind arises, it certainly is open to the Court not to confirm the sale and to treat the sale as being of no effect, that being the concurrent wish of the parties and the obvious requirement of the case.
4. With regard to the argument that the consent of parties cannot give the Court jurisdiction, it has always been held that there is a clear distinction between want of jurisdiction and want of power to proceed in a certain way. In Raghavachariar v. Murugesa Mudaliar AIR 1923 Mad 635 it was held that Order 21, Rule 92, Civil P.C., is no bar to the Court exercising its inherent power to refuse to confirm the sale even though no party has applied to cancel the sale. With regard to the consent of parties not giving the Court jurisdiction, in the very case relied on by the appellant, Minakshi v. Subramanya (1888) 11 Mad 26, it is stated, quoting from the judgment delivered by Lord Watson in Ledgard v. Bull (1887) 9 All 191 :. there are numerous authorities which establish that when, in a case which the Judge is competent to try, the parties without objection join issue and go to trial upon the merits, the defendant cannot subsequently dispute his jurisdiction upon the ground that there were irregularities in the initial procedure, which, if objected to at the time, would have led to the dismissal of the suit.
5. Here the Court is undoubtedly capable of executing the decree and if the parties consented to an irregular procedure in its doing so the Court would not be exceeding its jurisdiction in ad|opting that procedure. The appellant [had the advantage of the sale of the properties being set aside by his own consent and by his promise to pay the decree amount and he cannot now be heard to say that the Court had no power to set aside the sale. The second appeal fails and is dismissed with costs.