JUDGMENT
(Delivered by Govinda Menon, J.)
This is an appeal against a judgment of Chandrasekhara Aiyar, J. confirming the decision of the lower Court by which that Court set aside a sale at the instance of the judgment-debtor—98th defendant in the suit. What happened was that, after the passing of a mortgage decree against various defendants the 98th defendant in O.S No. 194 of 1928 on the file of the Sub Court of Coimbatore had to pay a certain sum of money to the decree-holder plaintiff and he was in possession of certain item of property. There was an agreement between the 98th defendant and the decree holder that the property would not be sold because a certain sum of money was paid by the 98th defend, ant. The result was an adjustment and an agreement that the item of mortgaged property belonging to the 98th defendant would not be sold. In contravention of that agreement, a sale took place, and the proclaimed property was purchased by the present appellant. The respondent—98th defendant put in an application, under O. 21, R. 90 Civil Procedure Code, as well as S. 47 for setting aside the sale. The lower Court found in favour of the adjustment and also found that the purchaser was not aware of the agreement between the parties. Such being the case, when it had to choose between two innocent sufferers, the lower Court was of opinion that the person more affected, namely, the judgment debtor, should be protected. The sale which had remained unconfirmed, was accordingly set aside. In appeal Chandrasekhara Aiyar, J. agreed with the decision of the lower Court following the decision in Shaikh Moula Bux v. Raghubir Ganjhu(1) where it has been held that the “conduct of the sale” means every step taken from the beginning to the end for the purpose of bringing the properties to sale. In those circumstances, the fact that the decree-holder and his assignee without bringing to the notice of the Court that there was an agreement between them and the 98th defendant not to sell the property brought the same to sale was enough to show that there was fraud in conducting the sale. On this reasoning the trial Court's judgment was confirmed,
In appeal, it is contended before us, on the authority of Earamulla Sanjamma v. Anna Sayanna(2), Bamchaibar Misir v. Bechu Bhagat(3) and Gauri v. Ude(4), that fraud in the publishing or conducting the sale does not include a fraud of the kind that had occurred in this case because the fraud must be in the actual process of publishing and proclaiming the sale or in steps taken subsequent to such proclamation. Mahmood, J. in Bamchaibar Misir v. Bechu Bhagat and another observes that the word “conducting” in S. 311 of the old Code, equivalent to O. 21, R. 90 together with the word “conducted” in the old S. 286 makes it clear that it would refer only to the action of the officer who makes the sale. Anything done antecedent to the order of sale has nothing to do with “conducting” the sale. Again, it is observed by him that the word “publishing” also refers only to what is done antecedent to the actual conduct of the sale but subsequent to the order directing the sale. This is also the view taken in Gauri v. Ude, as well as by Yahya Ali, J. in Earamalla Sanjamma v. Anna Sayanna. We are inclined to think that there is considerable force in the argument of learned Counsel for the appellant that the more correct view is that adumbrated in Bamohibar Misir v. Bechu Bhagat and the other two cases referred to above. Therefore it might be that the reasoning on which the learned Judge based his judgment may not appeal to us. But in this case the judgment debtor himself was the applicant to set aside the sale, the same having been made within 30 days. As the application is one between the judgment-debtor on the one hand and the decree-holder's representative, the auction purchaser, on the other, the contest is one that falls within the provisions of S. 47, C.P.C and, therefore, no separate suit would lie. If no separate suit would lie as has been decided in Rajalal v. Makanlal, it is the duty of the Court when it comes to know before the sale is confirmed that a fraud has been perpetrated in bringing about the sale, to refuse to confirm the sale. We think the interests of justice require that the lower Court should have refused to confirm the sale, as it has done in this case. Moreover Sundara Aiyar and Ayling JJ. in Budrudeen v. Gulam Moideen, were of opinion that a similar application by a judgment-debtor can be construed as an application for recording adjustment of the decree, which can be looked into and satisfaction recorded if the same is made within the time allowed by law. Here, in this case, the application was made within one month and there is no objection to treat the application as one for recording satisfaction of the decree under O. 21, R. 2, C.P.C Moreover it is also open to the Court, as decided in Baghava chariar v. Murugesa Mudali and others, in its inherent jurisdiction, to refuse to confirm the sale when a fact that there had been a fraud perpetrated by the decree-holder in causing the sale to be held is brought to its notice. Therefore, for these reasons, we are of opinion that the lower Court's order, confirmed by Chandra-sekhara Aiyar, J. has to be upheld, though not on the reasoning contained in the learned Judge's judgment. We are, therefore, of opinion, that the Letters Patent Appeal has to be dismissed, but in the circumstances without costs and do so.
V.C.S