Decided on October 27,1931

Chander Sarup And Anr Appellant
Murari Lal And Anr Respondents


- (1.) This purports to be an execution second appeal but in our opinion, it does not bear that character, and we shall have to treat the matter before us under our revisional powers. The facts briefly are these: A decree for money was passed against the appellants Chandar Sarup and Joti Prasad, minors on 23rd August 1927. In execution of the decree two houses belonging to the judgment-debtors were attached. The two ladies who were the guardians of the respective minors made an application to the District Judge for permission to raise money by transfer of the minors property. The execution went on and the threatened sale was postponed from time to time, because the application before the District. Judge was not disposed of. Ultimately a sale was held on 28th June 1929, but the learned Munsif, who was seised of execution, made an order that the sale would not be confirmed, if the judgment-debtors were in a position to pay the decretal amount raised under the permission of the District Judge. Two houses were sold and one was purchased by respondent Murari Lal. The decree-holder purchased the other house. The judgment-debtors and the decree-holder agreed that the sale of the house purchased by the decree-holder should be set aside. Ultimately, on 6th September 1929, the judgment-debtors got money by transfer of their property and put it into the Court. The learned Munsif thereupon set aside the sale. Murari Lal was dissatisfied by this order and filed an appeal to the District Judge which was heard by the learned Subordinate Judge. The learned Subordinate Judge held that the learned Munsif was bound to confirm the sale, and it was not competent to him to postpone the confirmation of the sale or to set aside the sale on any ground other than those mentioned in Rule 92, Order 21, Civil P.C.
(2.) The judgment-debtors have come up in second appeal. We have already pointed out that no second appeal is maintainable. An order confirming or refusing to confirm a sale is appealable only as an order, and no second appeal lies. But the reason why we want to take up, the matter under our revisional jurisdiction is this. Soon after the sale was made the judgment-debtors put in an application contesting the sale on the ground that it was vitiated by material irregularity, etc., under Rule 90, Order 21, Civil P.C. The learned Munsif in setting aside the sale said that it was not necessary for him to adjudicate on that application. The learned Subordinate judge in confirming the sale overlooked the fact that an application to set aside the sale was pending having been made-under Order 21, Rule 90. A confirmation of the sale before an application like that has been decided is a material irregularity which adversely affects a judgment-debtor. In the circumstances, we set aside the order of the Court below and send back the case to the execution Court with the direction that it will take up the application of the judgment-debtors made on 19th July 1929 asking for the setting aside of the sale on the ground of material irregularity, etc. If that application fails, the sale will, as a matter of course be confirmed. As we do not know what will be the result of that application, we direct that costs here and hitherto will abide the result of that application.;

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