Bapna, J. - (1.) THIS is a revision against the order of the learned Civil Judge , Jaipur District, dated 6th March, 1955, in execution proceedings.
(2.) MADAN Gopal petitioner held a decree against Thakur Samandar Singh Jagirdar of Badiyal, and in execution of his decree a certain nohra of the judgment-debtor situated at Badiyal came to be sold on 25th January, 1955, for Rs. 951/-, purchased by the decree-holder himself under permission of the court. Before the time for confirmation of sale arrived, one Kesarlal, who also held a decree against Samandar Singh, made an application for rateable distribution of the assets realised by the court. This application was filed on 5th Feb-ruary, 1955. The learned Civil Judge set aside the sale on the ground that the decree-holder, who was also the purchaser had not deposited 25% of the amount of the purchase money when the sale was knocked down in his favour, and also did not pay the balance of the purchase money within 35 days. This order was passed on 5th March, 1955, and is the subject of revision. Learned counsel urged that he made an application on 23rd October, 1954, for permission to bid at the sale and also for exemption from payment of the purchase money beyond the cost of the sale. The learned Civil judge while permitting the decree-holder to bid at the sale did not give any order in respect of the other prayer. The decree-holder after the sale again made an application on 29th January, 1955, that he should be permitted to set off the decretal amount against the purchase money, because no other decree-holder had upto that time applied for execution of his decree against the judgment-debtor, and claimed rateable distribution. It was urged that under O. XXI, R. 72 of the Code of Civil Procedure, the decree-holder is entitled to set off the purchase money against the amount of his decree unless there was a rival decree-holder claiming rateable distribution. That provision, it was urged, is also found in O. XXI, R. 84, as also Rule 85 In the last Rule, it is urged, the purchaser is definitely allowed to advantage of any set off to which he is entitled under Rule 72. It is not necessary to decide all the contentions raised, for the lower court does not seem to have taken the prayer made on the 23rd of October, 1954, as also the prayer on the 29th January, 1955, into consideration, and the sale was set aside simply on the ground that 25% of the purchase money and the balance had not been paid by the decree-holder. As the lower court has not applied its mind on the question whether the decree-holder should be allowed the privilege and facility of setting off his decretal amount against the purchase money, the case will go back to that court for decision of the applications of the decree-holder. The revision is, therefore, allowed, ana the order of the learned Civil Judge, dated 5th March, 1955, is set aside. The court will consider the applications of the decree-holder stated above on merits, and then pass afresh order as may be required by the merits of the case. It may be mentioned that at one stage of the arguments I had doubt whether the order was appealable, but 1 find from the authority of Mrs. J. Peliti vs. Kanshi Gopal (1) and of Katori Kunjra vs. Ajudhia Prasad (2) that such an order is not appealable, and for that reason the revision was entertainable. .;