Continued subsistence of decree necessary.

This appeal raises an interesting question as to whether an execution sale of immovable property to a stranger-purchaser has got to be confirmed tinder Order 21, rule 92, Civil Procedure Code, notwithstanding the fact that the decree, in execution of which the sale took place, had, before its confirmation, been modified on appeal therefrom, with the result that on the date of the sale, the decree remained over-paid and nothing was due under the same. In such circumstances, the lower Court declined to confirm the sale on the view that, on the date of the sale, nothing was due to the decree-holders for which they could put up the property for sale. Aggrieved by that order, the stranger-purchaser has filed this appeal.

On 31st March, 1954, in Suit No. 17 of 1941, the Joint Civil Judge, Nadiad, passed a decree for Rs. 39,878-7-9 with costs in favour of Santha Bai and Dave Bhavani Sankar and against three defendants, Dave Jetharam Jebhai (deceased), Dave Ganpatram Jetharam and Dave Jayadevlal Jetharam. By E.P. No. 133 of 1955, on the file of the City Civil Court at Madras, the house and ground No. 8, Ragunayakalu Street, Park Town, Madras, was sold for Rs. 15,000 in execution, but on an application made by one of the defendants the sale was set aside. Davey Govindram, the 2nd defendant, paid Rs. 20,000 and pan satisfaction of the decree was entered by an order, dated 19th March, 1956. By the same execution petition an one-third share in the house and ground No. 88, Mint Street, Park Town, was also put up for sale and knocked down to Venkatesh Kotadia, a stranger, who is the appellant before us, for Rs. 7,000 on 4th May, 1956. Meanwhile, there was an appeal against the decree in Suit No. 17 of 1941 and by judgment, dated 31st October,1956, the appellate Court varied the decree by reducing the amount recoverable to Rs. 5,326-4-1 with interest and costs. There is no dispute about these facts and it would be seen that on the date of the sale in favour of the appellant, the decree as revised remained more than satisfied on account of the payment of Rs. 20,000 by the 2nd defendant in the suit.

The appellant had deposited the entire sale price and there was no application filed by any of the parties within the prescribed time to set aside the sale. He, therefore, filed the application out of which the present appeal arises for confirmation of the sale.

It was contended in support of the appeal before us that once a valid sale had taken place and no application filed to set it aside under any of the rules 89, 90 or 91, the Court had no option but to confirm the sale and that the fact that on the date of the sale no amount was owing under the revised decree for which the property could have been sold, was not a ground for refusing confirmation where the interests of a stranger-purchaser were involved. The learned counsel for the appellant based his contention on the authority of Seth Nanhelal v. Umrao Singh1, Sorimuthu Pillai v. Muthukrishna2and Ambujammal v. Thangavelu Chettiar3 . The legislative history of section 65 of the Code of Civil Procedure, the language of rule 92 of Order 21 which appears imperative and the considerations for safeguarding the interests of a bona fide stranger-purchaser for value have led the Court in these cases to the conclusion that the subsistence of an outstanding decree on the date of confirmation is not an essential requisite for confirmation of the sale and that the only grounds for refusing confirmation are those provided by the Code. Seth Nanhelal v. Umrao Singh1was a case in which after a sale to a stranger in execution of a decree and before confirmation thereof, the decree-holders and the judgment-debtors reported an adjustment of the decree out of Court and it was prayed that the same might be recorded and certified and that the properties sold be released to the judgment-debtors from the sale. The Courts in India having granted the prayer, the stranger-auction-purchaser by Special Leave