Judgment

MITTER, J. : This is an appeal by a, certificate granted by the High Court of Andhra Pradesh against a judgment and order of that Court. dated March 4, 1963. The appeal is by a receiver appointed in a suit under the provisions of S. 92 of the Code of Civil Procedure with the object of applying for setting aside a sale of certain properties belonging to a choultry.

2. The facts shortly are as followers:-The second respondent before this Court obtained a decree in O. S. No. 116 of 1949 of Sub-Court, Vijayawada against Tammana Tatayya and Narayana Murty Annapurna Satrami and put some property to execution sale. The properties of the Satram were sold in Court auction on July 1. 1957 and the first respondent. Maddi Kutumba Rao became the purchaser for Rs. 24,600 O. S. No. 60 of 1957 was instituted in the same Court for the removal of the two trustees on the ground of mismanagement. The decree-holder was made party to this suit filed under S. 92. Civil procedure Code and one of the reliefs prayed for in the suit was that the sale above mentioned be set aside and provision be made for payment of the decree amount in O. S. No. 116 of 1949 under the scheme to be settled by the Court. To quote from Para. 11 of the plaint in that suit, the plaintiff asked that

"all proceedings in execution of the decree obtained by the 3rd defendant against the Satram be stayed pending the framing of the scheme and that the sale in favour of the 4th defendant held on 1-7-1957 by the Sub-Court Gudivada in E. P. No. 37 of 1956 in O S. 116/49 Sub-Court, Vijayawada, be set aside and that adequate provision for the discharge of the same be made.

The plaint bears the date 22nd July 1957. The decree-holder, the third defendant, was a minor represented by his mother and guardian, Lakshmikantamma. It appears at on July 30,1957 a memorandum was filed on his behalf in the Court of the Subordinate Judge. It was stated therein that

"As the plaintiff in O. S. No. 60 of 1957 have filed that suit for framing a scheme for the management of the choultry, etc., and have, asked in that suit for a proper provision to be made for the amount due to the third respondent in this petition, under the decree in O. S. No. 116/1949, this third respondent agrees to the same.

Therefore, this 3rd respondent has no objection for allowing the petition that has been filed for setting aside the sale held on 1-7-1957 in this suit without the necessity of depositing the sale warrant amount."

The receiver appointed in O. S. No. 60/1957 filed an application under O. XXI, R. 89 in the Court of the Subordinate Judge to set aside the Court sale. He deposited Rupees 1,230 representing 5 per cent of the purchase money for payment to the purchaser; Rupees 410-15-0 as poundage and Rs. 123 for interest. No deposit was made for payment to the decree-holder and it was stated in Para. 6 of the petition that:

"The 3rd respondent represented by his mother is impleaded as third respondent in the Scheme Suit O. S. No. 60 of 1957, Sub-Court, Vijayawada, wherein necessary provision for the discharge of the decree debt due to him from the choultry is prayed for and has to be made. At the request of the petitioner to keep up the fair name and prestige of the founders of the choultry, the 3rd respondent s mother as guardian and executor agreed to the said course and is willing for an adequate provision for the discharge of the decree debt being made in the said suit and has agreed to postpone realising the decree debt in O. S. No. 116 of 1949. Sub-Court, Vijayawada, till then in case the exiting trustees,respondents 1 and 2 do not choose to discharge the same in the meanwhile. Under the circumstances, the petitioner submits that the Hon ble Court may be pleased to dispense with the deposit or the amount specified in the proclamation of sale for payment to the decree-holder as required by Cl. (b) of R. 89 of C). XXI. C. P. C."

The prayer in the petition was that the sale of the properties in favour of the fourth