For a disposal of this appeal under clause 15 of the Letters Patent against the judgment of Panchapakesa Ayyar, J., dismissing a Second Appeal, S.A.No.255 of 1946, it is sufficient to state the following facts: In execution of a decree in a suit on a mortgage executed by the father of the two appellants to the 3rd respondent, the mortgaged property was brought to sale and eventually on 7th December, 1936, purchased by the mortgagee-decree-holder, the 3rd respondent To the mortgage suit, the 1st defendant, the father (the executor) and one of his sons, the 2nd defendant in the present suit, were added as parties. The two plaintiffs, appellants in this Second Appeal, had not been born by that time. The 1st plaintiff was born on 1st September, 1932, long after the decree in the. suit. The 2nd plaintiff was born on 1st September, 1935, during execution proceedings. The plaintiffs were not brought on record in the execution proceedings, presumably because their father, the 1st defendant, sufficiently and adequately represented their interests. Though the sale took place on 7th December, 1936, the decree-holder purchaser did not deposit into Court the general stamp for a certificate under Order 21, rule 84, Civil Procedure Code or the amount required for such a stamp as provided in Order 21, rule 85 of the Code. Immediately after the sale, there was an application to set aside the sale filed by the two judgment-debtors. That application, however, was considered by a consent order, under which if the judgment-debtors did not pay by a particular time the sale would stand confirmed. In accordance with the compromise, the sale was confirmed on 31st July, 1937. On 7th August, 1937, the decree-holder purchaser filed an application, E.A. No.191 of 1937 to have the delay in paying the amount necessary for the sale certificate excused. This application was ordered and the delay was excused. Subsequently, there was an application by the two judgment-debtors to set aside the sale, inter alia on the ground that the provisions of Order 21, rule 85, had not been complied with. That application was dismissed and a Civil Revision Petition filed in this Court, C.R.P.No.1636 of 1937, against the order of dismissal was also dismissed on 28th January, 1938. More than three years after this, the appellants instituted the suit, out of which this appeal arises, on 16th July, 1941. The suit was ostensibly for a partition of the family properties, but in effect a suit to get rid of the sale in favour of the third respondent. Both the Courts below dismissed the suit, and Panchapakesa Ayyar, J., who heard the Second Appeal also dismissed it but granted leave to appeal.

The only point raised by Mr. Umamaheswaram, learned counsel for the appellants before us, was that when the decree-holder-purchaser failed to deposit into Court the stamps or the amount required for the sale certificate under Order 21, rule 85, the sale in his favour must be deemed to have been automatically cancelled and the properties should have been re-sold under Order 21, rule 86. It must therefore be deemed that there was no sale in favour of the 3rd respondent, though the sale might have been confirmed and a sale certificate issued to him. He relied upon rulings of this Court and other courts, in support of the position that the requirements of Order 21, rule 85 of the Code are mandatory and failure on the part of the purchaser to comply with its provisions would have the result of automatically cancelling the sale in his favour. In Monni Aidruz v. Mira Mohideen1 it was held that under Order 21, rule 86 of the Code, if there was default in payment of the balance of the purchase money as required by Order 21, rule 85, it was obligatory on the Court to re-sell the property. In that case, there was a’ default by the purchaser and the Court directed a re-sale. It was this order that was the subject-matter of the appeal decided by a learned Judge of this Court in that case. It