1. The facts of this case are not-in dispute and are sufficiently clear from the application. The learned District Judge, as he was bound to do, dismissed the appeal of the applicant in his Court on the strength of the decision in Nilkanth v. Yeshicant A.I.R 1922 Nag. 248 , 18 N.L.R 134. It has, however, been urged before us that the said decision of Kotval A.J.C, is an incorrect one and did not take into account the question of the rights of third parties, which might meanwhile have arisen.
2. For our own part, we do not find it necessary, in the circumstances of the present case, to consider at length the propriety or otherwise of the reported case in question.
3. In the present instance, at the time the judgment-debtor and the decree-holder came to a settlement between themselves, the sale had not been confirmed. It is no doubt true, as has-been urged on hehalf of the applicant, that he had at the moment an inchoate right which had again come into being as a consequence of his appeal pending in the Court of the District Judge, Nagpur, but we are of opinion that the filing of the said appeal could not detract from the inherent right of the decree-holder and the judgment-debtor to settle the matter between themselves in view of the fact that the sale had not at the moment been confirmed: cf. Chowdhury Ram Prasad Rai v. Mahesh Kant Chowdhury A.I.R 1922 Pat. 525 , 1 Pat. 232. We are aware of the decision of Hallifax, A.J.C, in Ramchandra v. Lakshman A.I.R 1926 Nag. 298 but for our own part the present case seems to us practically on all fours with the decision of Baker, J.C, in Ramchandra v. Sadashiv (Second Appeal No. 405 of 1923, decided on 30th August 1924), and following the latter decision we are of opinion that the present application must fail.
4. We desire to add that the view we take on the legal point involved also squares with the equities of the case. All that the auction-purchaser loses in a case like the present is the interest on the money which has been locked up in deposit, and this is, in the circumstances, no great hardship. In our view, however, the judgment-debtor and the decree-holder having come to a settlement before the sale had been confirmed, there was no decree left capable of execution and the executing Court was functus officio. The position would, needless to say, have been very different if the sale had been confirmed and the parties to the decree had come to a settlement while legal proceedings were in being for the reversal of the order of confirmation.
5. So far as the present case is concerned, we do not find it necessary to consider at length whether the rule laid down by Kotval, A.J.C, in Nilkant v. Yeshwant A.I.R 1922 Nag. 248 , 18 N.L.R 134 is too widely expressed or not.
6. For the above reasons the present application fails and is dismissed. The applicant must bear the non-applicants' costs. We fix Rs. 50 as pleader's fee.
7. Application dismissed.