Appeal against order refusing to review.

This is a rather extraordinary case. On 2nd September, 1957, there was a sale in execution of the decree in O.S.No. 214 of 1952 on the file of the District Munsif’s Court, Tiruchirappalli. The auction-purchaser, who is the appellant in this appeal deposited 25 per cent of the price. Within the time limited by law and the conditions of the sale proclamation, he deposited the balance of 75 per cent in the treasury. This was on 14th September, 1957. But unfortunately, the purchaser, who did not engage or was advised by a legal practitioner and who,

I am told, was illiterate as well, did not know the rules of Court under which the receipt issued by the treasury should have to be lodged in Court. Rule 158 of the Civil Rules of Practice provides for the payment of the purchase price into the bank or treasury, the receipt from which should be deposited in Court. The appellant appears to have thought that the receipt was intended for his own purposes. He did not put it into Court . On 14th October, 1957, the Court, not having been apprised of the fact that the purchaser had performed his obligations in its entirety, directed a re-sale of the property. By that order the executing Court fixed the resale for 16th December, 1957. The appellant, coming to know that the property was to be sold afresh, rushed up to the Court. On 18th November, 1957, he filed an application to the executing Court under Order 47, rule 1, Civil Procedure Code, praying that the Court might review the order for sale passed on 14th October, 1957, and filing the treasury receipt into Court. Although the sale was yet to take place, the learned Subordinate Judge of Thanjavur strangely enough dismissed the application. It must be noticed that the appellant had deposited the money in time. There was no doubt an irregularity committed by him in that he had not filed the treasury receipt in Court in time. When the appellant apprised the Court that he had really paid the amount of the purchase money, it was the plain duty of the executing Court to rectify its own mistake and recall the order for sale. But that is not what the executing Court did. It allowed the sale to proceed. The decree-holder himself purchased the property. Disappointed with the order of the executing Court, the appellant filed an appeal to the District Judge at Tanjore. The learned District Judge upheld the order of the executing Court. He held that for a due compliance of the provisions of Order 21, rule 85, Civil Procedure Code, the production of the chalan in accordance with rule 158 of the Civil Rules of Practice was necessary. That may be so. The learned District Judge failed to note that it was the duty of the executing Court on being informed that the entire price had been paid in time to rectify the mistake and relieve the party against injustice subject to such terms as it might deem fit to impose in the circumstances of the case. The learned District Judge further held that as the executing Court had refused to grant a review of its order for re-sale no appeal could be entertained by it. In this the learned District Judge was in error. The application for review of the order was filed under section 47, Civil Procedure Code, as well. As at the time the application was filed the re-sale had not taken place, the auction-purchaser who represented the interest of the judgment-debtor could properly maintain the application, as the matter would be intimately connected with the question of discharge of the decree. The learned District Judge has pointed out that no interference with the order of re-sale was possible as the property had actually been resold. The learned Judge failed to notice that in the re-sale it was only the decree-holder that purchased the property, and if the Court sets aside the order as it should have done in the circumstances restitution by delivering back the property to the appellant would be possible. I am therefore of opinion that the lower Court should not have d