Kripa Nath Pal Decree Holder, v. Ram Laksmi Dasya Judgment-Debtor, .

The Judgments of the Court were as follows:—

Macpherson, J.:— The mortgaged properties consisted of different shares of different villages or kismuts in one taluk and the decree absolute directed that they should be sold for the realization of the sum of Rs. 8,783-86, being the amount due on the mortgage for principal, interest and costs. The properties, it seems, were all cotted for sale in one lot, and on the 20th March, the date of sale, one of the judgment debtors applied that the different villages might be sold separately. The decree-holder consented and the properties were then put up in nine lots, and the property No. 7th was one of the properties knocked down to the decree-holder for the sum of Rs. 160. On the 16th April, the present Respondent tendered the balance due under the decree after deducting the amounts bid by the decree-holder for some of the properties, and the amounts deposited by the other purchasers, together with the percentage money, and asked that the sale might be set aside as regards property No. 7. He, was allowed to make the deposit, and on the 13th June the Subordinate Judge set aside the sale under sec. 310A.

It is now contended for the decree-holder that section did not apply to this case, and there was no deposit within the terms of sec. 310A. It seems to us that this contention must prevail. There was one amount mentioned in the sale proclamation for which all the properties were to be sold, and it seems clear that on the date on which this deposit was made, the decree-holder had not received within the meaning of that section the difference between the amount deposited and the amount stated, in the sale-proclamation. A considerable portion of what is said to have been received by him consisted of money deposited by other purchasers as the purchase-money of some of the properties sold.

The decree-holder had certainly not received that nor do we think that he had any right to receive it, until the sale had been confirmed. No doubt, he put in a petition asking that the amount of his own bids might be set off against the amount of the decree. Speaking for myself, I am not inclined to think that would be an amount received, as the receipt on credit would depend upon the confirmation of the date which had not then been confirmed. But however that may be, the amount deposited by the other purchasers could not be said to be money received by him under sec. 310A. We think, therefore, that the Subordinate Judge was wrong in setting aside the sale on the application of the Respondent.

It is said that no appeal lies against an order under sec. 310A But the parties here stand in the position of decree-holder and judgment-debtor, and the order was made upon an application to set aside the sale. It cannot be said that is not a matter relating to the execution of a decree under sec. 244, C.C.P, and arising between the parties to the suit. The order of the Subordinate Judge setting aside the sale must, therefore, be set aside with costs we assess the vakil's fee here at two gold mohurs.

Ameer Ali, J.:— As at present advised, I am of opinion that the word “received” in sec. 310A ought to be construed to mean sums of money either actually received by the decree-holder or which he is in a position to credit to his account. Possibly, in this case, it may be said that, as regards the sum of Rs. 5,390, which the decree holder had set off against the money due upon the mortgage decree, it fell within the meaning of sec. 310A. But there can no question that, so far as the sura of Rs. 3,000 and odd was concerned, which was deposited or paid in by the other purchasers, the decree holder was not in a position to realize it or to credit it to his account in satisfaction of his decree, and, therefore, the amount put in by the Respondent cannot be said to have been a compliance with the provisions of sec. 310A. I agree, therefore, in setting aside the order of the Subordinate Judge. I am also of opinion that there is an appeal in this case.

S.C.S

Appeal allowed.