Mitter and Ghose, JJ.
1. The ground upon which the Additional Judge has decided this case implies that, until the date of the confirmation of sale, the judgment-creditor was not entitled to take out the sale proceeds of the properties sold in execution. We are of opinion that this view of the law is not strictly correct. It does not necessarily follow that, because the title of the execution purchaser dates from the date of the confirmation of sale, and the judgment-debtor continues to receive the profits of the property sold up to that date, the judgment-creditor is not entitled to draw out from Court the money realized by the sale. This view of the Additional Judge is negatived by the provisions of Section 315 of the Code of Civil Procedure, which says: 'When a sale of immoveable property is set aside under Section 312 or 313, or when it is found that the judgment-debtor had no saleable interest in the property which purported to be sold, and the purchaser is for that reason deprived of it, the purchaser shall be entitled to receive back his purchase money (with or without interest as the Court may direct) from any person to whom the purchase money has been paid.' This provision clearly implies that the purchase money may be paid to the decree-holder before the date of the confirmation of sale. Although there is no express provision in the Code of Civil Procedure upon this point, yet Sections 284 and 295 indicate that the view taken by the District Judge is not correct. The Bombay High Court in Vishvanath Maheshvar v. Virchand Panachand I.L.R. 6 Bom. 16 has held that a decree-holder may take out the purchase money before the date of the confirmation of sale. Although a decree-holder may take out the purchase money before the date of confirmation of sale, still we do not mean to hold that the Court holding the sale has no discretion in refusing to pay to the decree-holder the purchase money of the property sold before the date of confirmation of sale. There may be cases in which it would be necessary for the protection of the interests of the purchaser to detain the purchase money until the confirmation of sale, and the Court may, under special circumstances, refuse to pay over to the decree-holder the purchase money until the sale is confirmed, but in such cases the Court should provide for the due payment of the interest of the money so detained. We are, therefore, of opinion that the ground upon which the Additional Judge's decision is based in this case is not correct.
2. We have then to determine for ourselves whether, under the special circumstances of this case, the order of the Additional Judge is sustainable. We are of opinion that it is not, upon the following grounds:
First, we think that after the first three lots were sold on the 9th January 1882, and when the officer conducting the sale was proceeding with the sale of lot No. 4 on the next day, that is on the 10th January, the judgment-debtor, having paid the balance of the decree, the sale of lot No. 4 and the remaining three lots was stopped under Section 291 of the Code of Civil Procedure; this had the effect of virtually satisfying the entire decree.
Secondly, there having been no application under Section 311 to set aside the sale within thirty days from the date of sale, the Court was bound to confirm it under Section 312. Although the decree-holder applied to the Court on the 9th February 1882 to confirm the sale of lot No. 1 which he himself had purchased, he did not make any such application regarding the other two lots which were purchased by Monoranjun Dass. Neither did he make any application for obtaining the sale proceeds realized in execution of his decree.
Thirdly, that on the 23rd January 1882, the purchaser of lots Nos. 2 and 3, viz., Monoranjun Dass, having applied to the Court to be allowed to deposit the balance of the purchase money in Government Promissory Notes upon the condition that the said Notes were to be detained in Court until the result of the application which he was going to make for the reversal of the sale under Section 313 was known, the order prayed for having been made on the consent of the pleader of the decree-holder, but without any notice to the judgment-debtors, the decree-holder under these circumstances is not entitled to claim any interest on the money so kept in deposit from the judgment-debtors.
Fourthly, as it was quite open to the decree-holder, on the expiration of thirty days from the date of sale, to apply to the Court for the confirmation of the sale of lots Nos. 2 and 3, and to apply for the payment to him of the sale proceeds, and as he did not move the Court for that purpose, he is not in our opinion entitled to any interest from the date of sale until the date when by an order of Court the money was directed $o be detained until the disposal of the auction-purchaser's application to set aside the sale. The decree-holder, therefore, is not entitled to claim any interest from the date of sale to the 4th of August 1882.
3. Then as regards the period subsequent to that date it is true that the money was detained by an order of this Court, a rule having been issued to that effect, but that the rule was disposed of on the 14th December 1884, along with the appeal preferred by the auction-purchaser. It was, under the circumstances, incumbent upon the decree-holder on that occasion to move this Court regarding the liability of the judgment debtor to pay interest on the money in deposit in Court during the period which elapsed between the 9th January 1882 and the date of the stop order made by this Court. The order of this Court disposing of the rule provides for interest from the 21st March 1883, the date on which Mr. Macpherson confirmed the sale of lots Nos. 2 and 3 to date of payment of the purchase money, but no provision was made in that order for the period between the 9th January 1882 and the 21st March 1883. Either the decree-holder did not ask the Court to make any order respecting this period, or he did ask, but his prayer was not granted by this Court. In either case he would be precluded from making a fresh application for the realization of the interest for that period.
4. Upon these grounds, we are of opinion that the decision of the Additional Judge is erroneous. We accordingly set it aside with costs.