1. This appeal has been made under the following circumstances:
The appellant is the judgment-creditor and purchaser at an execution sale which was concluded on 31st January 1882. He purchased the property for Rs. 2,700, and the amount was set off against the amount due under the decree.
2. The judgment-debtor (respondent) applied to the Court to set aside the sale under Section 311 of the Civil Procedure Code on the ground of material irregularities in publishing or conducting it. He alleged that the requisite notices had not been published, and also that the decree-holder, appellant, had agreed to give him further time to discharge the debt, and had brought on the sale in violation of that agreement.
3. The Subordinate Judge decided that no irregularity was proved to have occurred, but considering that the decree-holder was proved to have practised a fraud upon the debtor in bringing on the sale after agreeing to give further time he set aside the sale. He quoted Subaji Rau v. Srinivassa Rau I.L.R. 2 Mad. 264 in support of this course.
4. This case shows that there is no specific provision in the Code, and that none is required authorizing the Court to set aside a sale under the circumstances stated above. It is, however, authority for another proposition, and that is for holding that there is no appeal against such an order.
5. It cannot be said that the order setting aside a sale, not made under the second paragraph of Section 312, but under the general power of the Court to check fraud, is appealable under the provisions of Section 588(16), but it has been argued that the case is well within the terms of Section 244(c), viz., that there was a question (1) between the parties to the suit, (2) relating to the execution, discharge or satisfaction of the decree. If this contention is correct the order setting aside the sale is undoubtedly appealable as being a decree. (See Section 2, Civil Procedure Code.)
6. On the other hand, it was urged that the question did not relate to the execution, dischauge, or satisfaction of the decree. Even if it should be held that the execution proceedings were closed by the sale, and that the confirmation or setting aside of the sale did not relate to the execution of the decree, a proposition against which Viraraghava Ayyangar v. Venkatacharyan I.L.R. 5 Mad. 217 is authority, it seems to be difficult to arrive at the conclusion that the partial discharge or satisfaction of the decree was not effected by the order setting aside the sale. The decree was pro tanto satisfied by the amount of the appellant's bid having been set off against the amount due from the respondent. The order now appealed against cancelled that pro tanto satisfaction, and it, therefore, appears to us that this order related both to the execution as held in Viraraghava Ayyangar v. Venkatacharyan I.L.R. 5 Mad. 217 and to the satisfaction of the decree. In this view of the case the appeal has been properly preferred to this Court. We do not find that the effect of Section 244 on the right of appeal was discussed in the case of Subaji Rau v. Srinivassa Rau I.L.R. 2 Mad. 264 already referred to. We think, however, that the case of Luchmeeput Singh v. Sita Nath Dass I.L.R. 8 Cal. 477 quoted by the appellant's counsel supports this view.
7. Upon the merits of the case we are unable to agree with the Court below. Apart from the question whether an agreement between the parties not brought to the notice of the Court can be recognized in the face of the provisions of Section 257(a)* of the Code, we are obliged to hold that the evidence does not establish any agreement at all. At most it gives rise to a suspicion that there were a sort of promise on the part of the appellant that if he paid a certain sum of money which was not paid to him he would not press on the sale. On the other hand, there is no evidence as to when this promise was made, and as we find that the sale commenced on the 21st January 1882, and was continued almost daily till its conclusion on the 31st idem, there would seem to have been no curtailment of the four days said to have been the period for which appellant agreed to wait for the promised payment.
8. We must, therefore, reluctantly say that no irregularity having been found to have taken place, a finding not impugned in appeal, the lower Court's order setting aside the sale is not justified by the evidence. We accordingly decree this appeal with costs. The sale must be confirmed.
*[Agreement to give time to judgment-debtor.
Agreement for satisfaction of judgment-debt.
Section 257A: Every agreement to give time for the satisfraction of a judgment-debt shall be void unless it is made for consideration and with the sanction of the Court which passed the decree, and such Court deems the consideration to be under the circumstances reasonable.
Every agreement for the satisfaction of a judgment-debt, which provides for the payment, directly or indirectly, of any sum in excess of the sum due or to accrue due under the decree, shall be void unless it is made with the like sanction.
Any sum paid in contravention of the provisions of this section shall be applied to the satisfaction of the judgment-debt; and the surplus, if any, shall be recoverable by the judgment-debtor.]