1. The lower Appellate Court has not found the facts necessary to entitle the decree-holder to re-open the execution proceedings. Section 315 of the Code of Civil Procedure requires that it should be found that the judgment-debtor had no saleable interest in the property sold at the time of the sale. There is no such finding recorded by the lower Appellate Court. The judgment-debtor did not admit that he had no saleable interest in Survey Nos. 443 and 460. He asserted the contrary in his memorandum of appeal to the lower Appellate Court. We must, therefore, ask the lower Appellate Court to submit a finding on the question whether the judgment-debtor had a saleable interest in Survey Nos. 443 and 430 on the date of the auction-sale. Fresh evidence relating to this question may be admitted. The finding should be submitted within two months after the re-opening of the Court after the recess. Seven days will be allowed for filing objections.
2. In compliance with the above judgment, the District Judge of Coimbatore submitted the following
1. I am required to submit a finding on the issue 'whether the judgment-debtor had a saleable interest in Survey Nos. 443 and 450 on the date of the auction-sale?'
2. The petitioners (plaintiffs) in the original execution petition, Execution Petition No. 104 of 1908 examined the Kurnam, of the village who clearly proves that the judgment-debtors, (counter-petitioners) had no enjoyment or interest in Survey No. 443 as far as he knows and that his experience as Kurnam of the village extends over a period of 14 years past. The counter-petitioners have adduced no rebutting evidence.
3. As regards Survey No. 460, the Kurnam proves that the first counter-petitioner in Execution Petition No. 104 of 1908, Rangasawmy Naicken, who is the father of the 2nd and 3rd counter petitioners, has been in enjoyment of only one-fourth of this Survey Number since the date of the partition deed Exhibit A, dated 24th June 1889 and that his one-fourth share was situated in the north west corner of Survey No. 460. His evidence also shows that none of the counter-petitioners ever enjoyed any other portion of Survey No. 460 except the north west corner. It is contended by the petitioners' Vakil that the land mortgaged in Survey No. 460 is specifically described as 6'71 acres on the eastern side of Survey No. 460 that it was this land which he purchased in execution of his decree and that as it has been now proved by the Kurnam's evidence (which is not rebutted by any evidence adduced by the counter-petitioners, that none of the counter-petitioners ever had any interest in the eastern portion of Survey No. 460, he is entitled to a finding with regard to this field also on the issue now remanded.
4. Having regard to the wording of the issue, however, all that I am now required to find is whether the judgment-debtors had a saleable interest in Survey No. 460 and evidence adduced by the petitioners clearly shows that they had a saleable interest in the north west carner of the field consisting of a one-fourth share of the entire area. The evidence of petitioners' 2nd witness, a nephew of the 1st counter-petitioner, also shows that the one-fourth share of the 1st counter-petitioner was sold in execution of another decree subsequent to the sale in execution of the petitioners' decree. There can be no doubt, therefore, that the judgment-debtors did have a saleable interest in Survey No. 460 to the extent of a one-fourth share of the entire field on the date of the auction-sale now under consideration.
5. I would also remark that the description of the counter-petitioners' share in the mortgage-deed, Exhibit D, as consisting of 6'71 acres situated on the eastern side of Survey No. 460 appears to be only an inaccurate description and does not vitiate the mortgage as creating a lien on such property as counter-petitioners possessed in any portion of Survey No. 460. The decree, therefore, and the sale in execution of the decree must, in my opinion, be held to refer to any saleable interest which the counter-petitioners possessed in any part of Survey No. 460.
6. In the result, my finding on the issue remanded with regard to Survery No. 460 is in the affirmative and with regard to Survey No. 443 in the negative.
3. This Civil Miscellaneous Second Appeal coming on this day for final hearing after the receipt of the finding from the lower Appellate Court, the Court delivered the following
4. It is unnecessary to consider whether, on the result of the present finding of the District Court, the judgment-debtor could be held to have had any interest in Survey No. 460 at the time of the sale. The defendants' right in three Survey Nos. 443, 476 and 460 was sold for a single price in one lot. It is admitted that he had a saleable interest in Survey No. 476. The decree-holder has not, therefore, proved that the judgment-debtor had no saleable interest in the property sold. See Sonaram Dass v. Mohiram Dass 28 C.P 235. The Court cannot,- for the purposes of Section 313 of the Code of Civil Procedure, sever a single sale. The orders of the lower Courts are Reversed and Execution Petition No. 101 of 1903 on the file of the Munsif's Court dismissed but without costs throughout.