1. These three matters all arise out of the same order which raises a question under Section 19 of Madras Act IV of 1938. C.M.A. No. 325 and C.R.P. No. 1346 are alternative proceedings brought by the first defendant. C.M.A. No. 428 is an appeal against the same decision by the other defendants in the case.
2. There was a decree passed on 31st January, 1934 for a sum of Rs. 10,000 and odd by the Tanjore Subordinate Judge's Court. In execution of that decree a sale was held under the orders of the Subordinate Judge of Kumbakonam on 26th August, 1937 and the property was purchased by the decree-holder for Rs. 11,328, which was a little more than the amount due under the execution petition. He was given leave to bid and set off, so that there was no actual payment of cash. Within one month of the sale an application was filed by the defendants under Order 21, Rule 90 Civil Procedure Code to set aside the sale on the ground of irregularity etc. When that application was still pending, Madras Act .IV of 1938 came into force and on 20th June, 1938 applications were filed by the judgment-debtors to scale down the decree. These applications were rejected by the Court below on the ground that there was no subsisting decree in view of the fact that the purchaser was the decree-holder and had been allowed to bid and set off.
3. After the proceedings in this Court began, there was a consent order whereby the application under Order 21, Rule 90 was terminated on conditions providing for the cancellation of the sale on payment of an amount which will depend on this Court's orders in the present proceedings. We have therefore to proceed with the matter as it stood when the applications under Section 19 were filed, at which time a sale had been held but its confirmation was held up owing to the application to set aside the sale.
4. It has been argued that by reason of Order 21, Rule 72 Civil Procedure Code there is an immediate satisfaction of the decree in a case where the decree-holder has been given leave to set off the purchase money against his decree. This is a contention which it is difficult to maintain not only by reason of decisions to the contrary, but also in view of the provisions of Rule 89 which enable the judgment-debtor to get such a sale set aside on payment of the amount due together with the solatium to the purchaser. It has not been contended that Rule 89 does not apply to a sale to a decree-holder and in such a case it seems to follow that the decree cannot be regarded as satisfied so long as the judgment-debtor can proceed under Rule 89. There are, moreover, decisions which to our minds show conclusively that the decree is not satisfied in such a case as this until the sale has been confirmed; for example Ganesh v. Purshottam I.L.R. (1908)33 Bom. 311 Khalil-Ur-Rahman v. Gokul Prasad I.L.R.(1919)All. 526 and the decision of the Privy Council in Rajah Ragunandan Prasad Singh v. Commissioner of Income-Tax, Bihar and Orissa (1933) 64 M.L.J. 544 : L.R. 60 IndAp 133 : I.L.R. 12 Pat. 305 which, though it relates to an income-tax matter, decides quite clearly on the basis of the Code of Civil Procedure that the date on which the proceeds of the sale are received in such a case by the decree-holder is the date of the confirmation and not the date of the sale. In the face of these authorities it is not very profitable to refer to cases of rateable distribution in which the Court is concerned merely with the date of the receipt of the assets by the Court and not the date of the satisfaction of the decree. We are of opinion that on the facts of the present case it must be held that at the time when the applications under Section 19 were filed, the decree was still unsatisfied and the applicants were entitled as judgment-debtors to ask that the decree be scaled down under the Act.
5. We therefore allow the appeals and the revision petition, set aside the lower Court's order and remand the application for disposal in the light of this judgment. There will be an order for costs in C.M.A. No. 325 of 1939.