Stanley, C.J:— The facts of this case are these. The Bank of Upper India held a decree for sale on the property of Afzal Shah, Dost. Muhammad Khan and Amir Muhammad Khan. In execution of that decree, they attached and advertised for sale the property of their judgment-debtors. The plaintiff, Musammat Amir Begam, who is the wife of Afzal Shah, authorized one Haidar Shah to purchase for her out of the property so advertised for sale, as she alleges, the share which belonged to her husband, but not the shares of Dost Muhammad Khan and Amir Muhammad Khan in the village of Purwana Mahmudpur. The share of Afzal Shah in this village was sold, on the 20th of August, 1903, to the plaintiff, and the deposit in respect of the purchase money was duly made, and this sale was carried out. With this share, we have nothing to do in this appeal. The shares of the other judgment-debtors in this village were put up for sale on the 23rd of August, 1903, and were knocked down for a sum of Rs. 20,000. Haidar Shah attended at this sale and was the highest bidder. He represented that he attended and bid at the sale on behalf of the plaintiff. No deposit on account of the purchase money was made. Time was allowed to Haidar Shah to pay the deposit, but he failed to do so, and on the 25th of August, 1903, this share of the property was sold for a sum of Rs. 12,500 to the decree-holders, the Bank of Upper India. The Bank then claimed to be entitled to recover from Musammat Amir Begam, the amount of the difference in the sale price of the property, and the price offered by Haidar Shah, namely, Rs. 7,500. Musammat Amir Begam objected, alleging that Haidar Shah had no authority from her to purchase the property in her name. The Bank then attached her property in execution, for the purpose of raising the amount of their claim, and she thereupon instituted the present suit to have it declared that she was not liable to pay the deficiency, and that the defendant Bank was not entitled to recover that deficiency from her, and that her property could not be sold to satisfy the amount.
2. The court below held upon the issue as to whether or not Musammat Amir Begam did give authority to Haidar Shah to bid on her behalf, in respect of this share of the property, that she had given such authority and dismissed her suit. Hence the appeal which is now before us.
3. [His Lordship after consideration of the evidence proceeded as follows:—]
4. Upon the whole we are clearly of opinion that Haidar Shah had no authority whatsoever from Musammat Amir Begam to purchase the shares of Dost Muhammad Khan and Amu-Muhammad Khan, and this being so, the plaintiffs suit ought to have been decreed.;
5. There is a further matter which has occurred to us on the hearing of the appeal, and that is this. Under the provisions of section 306 of the Code of Civil Procedure, a purchaser is required to deposit 25 per cent of the amount of his purchase money immediately after he has been declared the purchaser. The section provides that in default of such deposit the propetty shall be forthwith put up again and sold. It was decided by a Bench of this Court in the case of Intizam Ali v. Narain Singh(1), that if a purchaser failed to make the deposit required by this section, no sale whatever could be held to have taken place. Stuart, C.J, in that case held that the sale impugned by the appeal was not bad by reason of an irregularity in its conduct but that “it was no sale at all, inasmuch as the indispensable conditions of the law, as contained in section 306 of the Code of Civil Procedure, were not fulfilled by the person declared to be the purchaser. The sale took place early in the afternoon of 20th April 1882. and the respondent did not pay a deposit of 25 per cent on the amount of his purchase immediately after the declaration that he was the purchaser.” Then they say:— “In default of such deposit the property should have been forthwith put up again and sold. The order of the court below confirming the sale was therefore wrong and must be set aside.” This is an authority which we are bound to follow. It decides that there was in this case no sale, and therefore no resale such as would justify the claim of the Bank made under section 293. There was in fact no resale within the meaning of that section. Therefore upon the merits as well as in view of the provisions of section 306, it appears to us that the plaintiff ought to have succeeded in her suit.
6. We therefore allow the appeal. We set aside the decree of the court below and give a decree to the plaintiff in the terms of the relief asked for in the plaint. The defendant Bank must pay the costs of this appeal and also the costs in the court below.
7. Appeal decreed.