1. For a disposal of this appeal under Clause 15 of the Letters Patent against the judgment of Panchapakesa Ayyar J. dismissing a second appeal, S. A. No. 255 of 1946, it is sufficient to state the following facts :
In execution of a decree in a suit on a mortgage executed by the father of the two appellants to respondent 3, the mortgaged property was brought to sale and eventually on 7-12-1936 purchased by the mortgagee-decreoholder, respondent 3. To the mortgage suit, defendant 1, the father (the executant) and one of his sons, defendant 2 in the present suit-, were added as parties. The two plaintiffs-appellants in this second appeal, had not been bom by that time. Plaintiff 1 was born on 1-9-1932, long after the decree in the suit. Plaintiff 2 was born on 1-9-1935 during execution proceedings. The plaintiffs were not brought on record in the execution proceedings, presumably because their father deft. 1, sufficiently & adequately represented their interests. Though the sale took place on 7-12-1936, the decree-holder purchaser did not deposit into Court the general stamp for a certificate under Order 21, Rule 84. Civil P. C. or the amount required for such a stamp as provided in Order 21, Rule 85 of the Code. Immediately after the sale, there was an application to set aside the sale filed by the two judgment-debtors. That application however was concluded by a consent order under which if the judgment-debtors did not pay by a particular time the sale would stand confirmed. In accordance with this compromise, the sale was confirmed on 31-7-1937. On 7-8-1937 the decree-holder purchaser filed an application, E. A. No. 191 of 1937, to have the delay in paying the amount necessary for the sale certificate excused. This application was ordered, & the delay was excused. Subsequently there was an application by the two judgment-debtors to set aside the sale, 'inter alia', on the ground that the provisions of Order 21, Rule 85 had not been complied with. That application was dismissed and a civil revision petition filed in this court C. R. P. No. 1636 of 1937 against the order of dismissal was also dismissed on '28-1-1933. More than three years after this, the appellants instituted the suit, out of which this appeal arises, on 16-7-1941. The suit was ostensibly for a partition of the family properties, but in effect a suit to get rid of the sale in favour of respondent 3. Both the Courts below dismissed the suit, and Panchapakesa Ayyar J. who heard the second appeal also dismissed it but granted leave to appeal.
2. The only point raised by Mr. Umamahes-warani, learned counsel for the appellants before us, was that when the decree-holder purchaser failed to deposit into Court the stamp or the amount required for stamp for the sale certificate under Order 21, Rule 85, the sale in his favour must be deemed to have been automatically cancelled and the properties should have been resold under Order 21, Rule 86. It must therefore be deemed that there was no sale in favour of respondent 3, though the sale might have been confirmed and a sale certificate issued to him. He relied upon rulings of this Court and other Courts, in support of the position that the requirements of Order 21, Rule 85 of the Code are mandatory and failure on the part of the purchaser to comply with its provisions would have the result of automatically cancelling the sale in his favour.
In -- 'Monni Aidmz v. Mira Mohideen', AIR 1939 Mad 57 (A), it was held that under Order 21, Rule 86 of the Code, if there was default in payment of the balance of the purchase money as required by Order 21, Rule 85, it was obligatory on the Court to resell the property. In that case, there was a default by the purchaser and the Court directed a resale. It was this order that was the subject-matter of the appeal decided by a learned Judge of this Court in that case. It was held that the order directing resale was perfectly valid and in accordance with the plain language of Order 21, Rule 86, Civil P. C. In that case, the Court did not excuse the delay in payment and did not accept the deposit made out of time. Nor did the Court ever confirm the sale.
In -- Annapurnmma Dasi v. Bazley Karim', AIR 1941 Cal 85 (E), the question no doubt arose in a subsequent suit, but it docs not appear from the report of the judgment in that case that the Court condoned the delay in making the deposit It was held that on default of payment the pun chaser forfeited all claims to the property. Much assistance cannot be derived from this case.
In -- 'Inamullah v. Muhammad Idris', AIR 1943 Alt 282 (C), the matter came up in execution proceedings. The auction-purchaser there deposited the amount of the purchase money beyond time and the executing Court restored the sale in favour of the purchaser in spite of the protest by the judgment-debtor. Meanwhile, the judgment-debtor had deposited the whole of the decretal amount. It was held by Mullah J. that on failure of the auction-purchaser to deposit the amount of the purchase money the sale in his favour was automatically cancelled and the Court had to hold another sale. As, however, the judgment-debtor had deposited the full amount under the decree there was no necessity for holding a resale.
The decision in -- 'Naval Kishore v. Buttumal, AIR 1935 All 243 (D) does not carry us any further. In that case, there was an appeal against an order of the executing Court confirming a sale, although the balance of the purchase money had not been deposited within the time allowed. The auction-purchaser there obtained the permission of the Court to deposit the amount after the prescribed time had elapsed. It was held that the Court had no jurisdiction to extend the time.
3. It may be admitted that all these decisions, are authorities for the position that if the auction-purchaser does not comply with the provisions of Order 21, Rule 85, he cannot insist on complying with it after the lapse of the prescribed time and demand that the sale in his favour should be confirmed. But actually what happened in this case was that the sale was confirmed in accordance with a compromise between the parties and subsequently the Court condoned the delay in depositing the amount required for stamps for the sale certificate. In these circumstances the question is whether the sale should be deemed to be void as contended by counsel for the appellants.
4. On this point, we have the direct authority of a decision in -- 'Subramania Nambudiri v. Vykunta Kammathi', AIR 1923 Mad 48 (E). In that case, in execution of a decree there was a sale on 26-8-1915. The decree-holder himself was the purchaser in execution & he had been allowed to set off the decree amount against the sale price and to pay the balance. He was unable to make the deposit of the balance within 15 days, but the Court allowed him six days more. The balance was deposited a day after the six days. The sale was confirmed and a sale certificate was issued to the purchser in September 1915. A petition was filed in December 1920 purporting to be under Sections 47 and 151, Civil P. C. praying that the sale may be declared to be a nullify. The learned Judges held that though a Court ought not to extend the time for deposit by the purchaser under Order 21, Rule 85 of the Code or accept a deposit paid beyond time without the consent of all the parties concerned, nevertheless if the Court did so extend the time or accept the deposit without such consent, then it is an irregularity and does not make the sale a nullity. The principle of this decision would apply to the facts of this ease. The learned Judge who decided - 'AIR 1939 Mad 57 (A)', had evidently this decision also in mind when he observed as follows:
"Mr. Thiagarajan Iyer relied upon decisions of this Court and of other High Courts, where it was held that even though the deposit as required by Order 21, Rule 85 was not made within the tune limited, with the consent of all parties the Court might confirm the sale, & if the Court confirmed the sale it was only an irregularity. But those decisions do not throw light on the question in dispute, namely, if the Court declines to confirm the sale but passes an order directing a resale, whether the Court was not justified in doing so."
4a. In the present case, we have the further facts that the application was filed by the judgment-debtor to have the sale set aside on this very ground. Not only was that application dismiss-ed but a civil revision petition against the order of dismissal was also filed and failed. No doubt the present appellants were not 'eo nomine' parties to that application or to the civil revision petition, but it cannot be denied that the judgments-debtor therein, the father amply represented the appellants and their interest. There was no question of any conflict between the interests of the father and the sons, the plaintiffs. In effect, the plaintiffs must be deemed to have been parties to all the proceedings at its several stages. The order passed on the application by the two Judgment-debtors to set aside the sale must be held to be binding on the plaintiffs also. In this suit, they cannot agitate once again the subject-matter of that application.
5. On both the grounds the appeal must be and is dismissed with costs.
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