Macpherson and Ameer Ali, JJ.
1. The appellant having purchased a share of a taluk at an execution sale failed to pay the balance of the purchase-money, and there was a resale at which the price realised was much smaller than the price realized at the first sale. Both Courts have held that the appellant must make good the deficiency according to the terms of Section 293 of the Procedure Code. The decree-holder is the person seeking to enforce the payment and the respondent in the appeal.
2. A preliminary objection is taken that no appeal lies, but there is a current of decisions in this Court dating from 1865, showing that an appeal does lie, and we feel bound to follow them. The cases are Sree Narain Mitter v. Mahatab Chand (1865) 3 W. R. 3; Sooruj Buksh Singh v. Sree Kishen Doss (1866) 6 W. R. Mis. 126; Joobraj Singh v. Gour Buksh Lall (1867) 7 W. R. 110; and Baij Nath Sahai v. Moheep Narain Singh (1889) I.L.R. 16 Cal. 535. No decision to the contrary has been cited, although the question has been raised in several other cases but not decided. The first three cases were under the Code of 1859 as amended by Act XXIII of 1861, but there is in this respect no substantial difference between the old Code and the present Code. The Madras Court has taken the same view in Amir Baksha Sahib v. Venkatachala Mudali (1895) I.L.R. 18 Mad. 439. The Allahabad Court took a different view in Deoki Nandan Rai v. Tapesri Lal (1892) I.L.R. 14 All. 201 and held that there was no appeal. But it may be noticed that Mr. Justice STRAIGHT dissented, and Mr. Justice Knox seems to have held that an appeal would lie from an adjudication in proceedings to enforce an order under Section 293.
3. In all the cases in which it was held that an appeal lay the question was regarded as one under Section 244 of the present Code, or the corresponding section of the old Code, so that if there is an appeal at all there is no doubt as to the right of second appeal. It seems that before the resale the appellant applied to have the first sale set aside under Section 313 of the Code on the ground that the judgment-debtor had no saleable interest in the property. It was found that what was sold was the judgment-debtor's interest in a shikmi taluk called Radha Govind Biswas with a rental of Rs. 890 odd, and comprising certain mouzahs, hi smuts and paras, whereas what was advertised and put for sale was his interest in a shikmi taluk called Ram Govind Biswas with a rental of Rs. 495, but comprising the same mouzahs, kismuts and paras. The first Court refused to set aside the sale, holding that the misdescription was immaterial, as the judgment-debtor had no other shikmi taluk in those mouzahs, and that the appellant, who was his co-sharer, must have known this and understood quite well what he was buying. The order rejecting the application was upheld by the Appellate Court on the same grounds. The property was put up at the first sale, realised Rs. 3,200, the next highest bidder-being the decree-holder, and when put up at the second sale under precisely the same description, it realised Rs. 850. The decree-holder had obtained leave to bid at the second sale, provided he did not bi(sic) 100.
4. The appellant resisted the attempt to make him liable on three grounds: first, that there was no such property as the one sold; second, that the decree-holder and judgment-debtor had made false representations to him as to the property which was being sold; and, third, that the purchaser at the second sale was a mere benamidar of the decree-holder. His objections were overruled by both Courts without any inquiry, and an order was made for the realization of the deficiency by the process prescribed for the execution of decrees. We cannot, of course, interfere with the order under Section 313, or with the order confirming the second sale, which it appears has been confirmed, but the question is whether on the facts as stated above the appellant is liable for the deficiency, and we must hold that he is not in any view of the case.
5. Before the defaulting purchaser can be made liable under Section 293, it must appear that the property which is the subject of the two sales is the same in every respect. If the Courts were right in holding in the proceeding under Section 313 that, notwithstanding the misdescription, the property sold on the first occasion was the judgment-debtor's share in shikmi taluk, Radha Govind Biswas, bearing a rent of Rs. 890, it is clear that is not what was put up for sale on the second occasion, ostensibly at-least. It may be said that the same property was really sold, but that there was a misdescription on both occasions. Assuming this to be so, it makes no difference. If there was a misdescription on the first occasion the decree-holder was aware of it, and he ought not to have had the property again proclaimed for sale under a description which he knew to be wrong. Having done that lie cannot make the defaulting purchaser answerable for the deficiency.
6. It is not necessary to consider what would have happened if the property which the Courts considered was the property sold on the first occasion, had bean rightly described on the second, as we must deal with the facts as they are. Possibly in that case the decree-holder might have found himself in a difficulty in attempting to realize from the defaulting purchaser any deficiency in the price. He cannot, however, be allowed to evade that difficulty by having the property proclaimed for sale under a description which he knew to be wrong.
7. We set aside the order of both Courts. The application of the decree-holder fails and must be rejected. The appellant will get his costs in this Court.