1. This is a rule obtained by an auction-purchaser calling upon the opposite parties to show cause why an appellate order made by the Subordinate Judge setting aside a sale should not be set aside and the order of the Munsiff rejecting an application under Order 21, Rule 89, Civil P.C., should not be restored. The sale was held on 18th March 1936, and the property purchased by the petitioner for Rs. 160. The judgment debtor filed an application under Order 21, Rule 89 on 8th April 1936. She de-posited five per cent. of the purchase money to be paid to the petitioner. She did not deposit anything to be paid to the decree-holders because she asserted that she had settled their claim out of Court and nothing further was due to them. The pleader who was acting on their behalf gave a receipt for Rs. 100. On 20th April the petitioner filed on application objecting to the petition. On 18th June, another application was filed on behalf of the minor decree- holders in which they objected to the petition on the ground that they had not assented to the payment of Rs. 100 in complete satisfaction of the decretal amount. The learned Munsiff rejected the petition, but an appeal to the District Court was allowed by the learned Subordinate Judge. The petitioner then obtained this rule.
2. Three points have been urged in support of the rule : (1) that when once the petitioner who is a third party had acquired an interest by his purchase, it was no longer open to the judgment-debtors and decree-holders to settle the matter out of Court; (2) that the adjustment was not in full satisfaction of the claim and that, therefore, a duty was laid upon the judgment-debtor to deposit the balance; and (3) that the appeal by the judgment-debtor was incompetent inasmuch as she had parted with her interest.
3. In support of the first point, reliance was placed upon the decision of their Lordships of the Judicial Committee in Nanhelal v. Umrao Singh . It was not disputed on behalf of the opposite parties that the petitioner has acquired some interest by his purchase. He is entitled, on the sale being set aside under the provisions of this rule, to a payment equal to five per cent. of his purchase money. It will thus be evident that his interest was safeguarded by the deposit of this sum made by the judgment-debtor. On the other hand, in the case to which I have referred, no such deposit was made. This matter was fully considered by my learned brother S. K. Ghose, in Jotis Chandra Ghose v. Bireswar Haldar (1935) 39 CWN 829. He referred to this distinction and ha also pointed out that at the time of the application the decretal amount had not been satisfied. It is provided by sub-clause (b) of Rule 89 that the judgment- debtor is not bound to deposit any amount which may have been received by the decree-holder since the date of the said proclamation. Now in the present case the contention of the judgment-debtor was that the decretal amount had been discharged in full. On this view of the case there would be nothing left to deposit.
4. On the second point, the learned Munsiff held that the judgment debtor was unable to support her case of full satisfaction in view of the provisions of Order 32, Rule 6 of the Code. On appeal, the learned Subordinate Judge held that this Rule had no application. The solution of the problem really depends on the question whether the pleader who granted the receipt was in a position to give a valid discharge on behalf of all the decree-holders. It is not very clear that the learned Subordinate Judge decided this point. At any rate, it was not argued before me. I rather doubt whether he did decide it, because he went on to direct the judgment debtor appellant to deposit the balance of the decretal amount and he could hardly have made that order if he was satisfied that the pleader had given a valid discharge. This further deposit was made long after the time prescribed by the Rule and it was conceded on behalf of the opposite parties that such a deposit is ineffective. But I am certainly not prepared to restore the sale on that ground at the request of the auction purchaser. It is a matter with which ha has nothing to do. The persons interested are defendants 2 to 5 and they have not made any attempt to get the order made by the learned Subordinate Judge set aside.
5. The third point raises a question of fact and appears to have been taken for the first time in this Court. The only evidence upon which it is supported is an answer made by the judgment-debtor to a question asked her in cross-examination. Whether this transfer was a benami one or not, it is impossible to say. Inasmuch as this objection was not taken in the Munsiff's Court, it cannot be raised now. The rule is accordingly discharged with costs to the opposite party No. 1. Hearing fee one gold mohar.