1. A preliminary objection is raised that no appeal lies against an order refusing to set aside a sale under Section 310A, Civil Procedure Code of 1882, except when the decree-holder himself is the purchaser. In Nallamuthu Pillay v. Subba Pillay 8 Ind. Cas. 855 this Court held that an appeal would lie against such an order although the purchaser was a stranger The new Civil Procedure Code has expressly provided for an appeal in all cases of orders under Section 310A (Order XXI, Rule 89), SO that no difficulty could arise in future cases. We are content, in these circumstances, to follow the judgment in Nallamuthu Fillay v. Subba Pillay 9 M.L.T. 165 : 8 Ind. Cas. 855 and we overrule the objection.
2. Proceeding to the merits, the petitioner, judgment-debtor, stated that on 24th April 1908, that is, before the expiration of 30 days from the date of the auction-sale which took place on 3rd March, 1908, the decree holder's widow agreed to treat a portion of the decree-debt as discharged in consideration of services rendered by the judgment-debtor to her husband. Such an acknowledgment of discharge may be treated as tantamount to receipt of the amount in question. Actual receipt of the amount in cash is not necessary. In fact, the learned Counsel for the respondents does not contend that it is necessary. The section does not say that the discharge should be certified to the Court within 30 days after the sale. The lower Court has not recorded a finding on the question whether, as a fact, there was an agreement of discharge on 24th April 1908 as alleged.
3. A subsequent agreement would not be sufficient to entitle the petitioner to maintain his application. The lower Court is requested, to record a finding on the question mentioned above. Both parties are at liberty to add ace evidence en the point. Six weeks will be allowed for submission of the finding and ten days for filing objections.
4. In compliance with the above judgment, the District Judge of Guntur submitted his finding to the effect that the alleged agreement of discharge on 24th April 1908 was true.
5. The appeal coming on for final hearing on 27th March 1912, after return of the above finding, and the Court delivered the following
6. In this case the judgment-debtor paid a certain amount into Court and alleged an agreement with decree-holder's widow by which the balance of the amount mentioned in the proclamation of sale was set-off. It was held that such an agreement, coupled with the payment of the balance not covered by the agreement, would, if proved, amount to payment to the decree-bolder within the meaning of Section 310A, Clause (b) of the Civil Procedure Code of 1882. A finding was then called for from the lower Court as to whether the alleged agreement was proved.
7. The lower Court has now returned a finding to the effect that the agreement has been proved. That finding is not open to any legal objection and we accept it. It is argued by Mr. Prakasam, who appeared for the respondent-purchaser, that the adjustment was with the widow of the decree-holder, and, therefore, it could not be taken into account. This point must be taken to have been decided, if not in so many words, at least by implication, by the previous order of the Court against the respondent, and it is not open to him-to raise the question again. The result will be, the appeal will be allowed and the sale will be set aside. There will be no order as to costs.