Proper procedure to be followed for affidavits of parties as to errors.

These are two petitions to revise the order of the District Judge, Eluru, in C.M.A.No. 123 of 1947 and C.M.A.No. 25 of 1948, on his file.

The more material facts are these. On nth March, 1946, the Official Receiver sold the properties of the insolvent in I.P.Nos. 21 and 22 of 1933, on the file of the Subordinate Judge, Eluru. One Virabadra Rao the petitioner before me was the successful auction-purchaser, the amount of his bid being Rs. 15,500. On 29th March, 1946, two creditors of the insolvent, named Bapiraju and Virasami filed I.A.No. 320 of 1946, before the Subordinate Judge, Eluru, praying that the sale be set aside. One Chunilal, another creditor of the insolvent, probably entertained fears that Bapiraju and Viraswami might not prosecute their petition diligently and so on 22nd December, 1946, he applied to be added as the third petitioner in I.A.No. 320 of 1946. The petition which Chunilal so filed was numbered as I.A.No. 44 of 1947. On nth February, 1947, this I.A.No. 44 of 1947 was dismissed because even though his vakil was present the petitioner was absent and no evidence was adduced in support of the allegation that the petitioners in I. A. No. 320 of 1946 were not prosecuting their petition with diligence. On 8th April, 1947, I.A.No. 320 of 1946 was withdrawn and dismissed. Chunilal thereupon filed two appeals before the District Court. One numbered as C.M.A.No. 123 of 1947 was against the order dismissing I.A.No. 320 of 1946 and the second numbered as C.M.A.No. 25 of 1948 was against the order dismissing his own application, I.A.No. 44 of 1947.

There is a certain amount of apparent-but as finally appears over apparent-controversy about what happened in the District Court. Nevertheless certain facts are not disputed. The learned District Judge heard arguments in the appeals on 22nd June, 1949, and reserved judgment. Either on the 24th or on the 25th June, the difference between these dates is immaterial-the appeals were taken up in order to ascertain whether the appellant or anyone else was willing to deposit Rs.25,000 as his initial bid. Time was extended once again till 12th August 1949, when one Vagu Venkataswami stated to be the son-in-law of one of the insolvents deposited a sum of Rs. 6,250. The learned District Judge made an order on 12th August, 1949, of which the first paragraph rules runs as follows:

“In view of the deposit made here to prove the bona fides of the contention of the appellant that the sale of the property in question was not for proper price both sides agree that the appellant should be allowed to be added as a party and given an opportunity to convince the lower court that the sale is liable to be set aside on this ground. Both sides further agree that I.A.No. 320 of 1046 on the file of the lower court should be restored to the file of the lower court for disposal on merits. In dealing with it the lower court will take into consideration that fact that there is a bidder who is prepared to start his bid with Rs. 25,000 as the upset price. Both these appeals are allowed”.

On behalf of Virabhadra Rao, the petitioner before me, it was strenuously contended that on neither of the two points set out in the order of the learned District Judge now complained of was there the agreement that he asserts there was. An affidavit of the learned vakil who appeared for the petitioner in the District Court was filed in support of the contention. It is stated that it was only because this affidavit was filed that these civil revision petitions were admitted at all. When notices was issued to the opposite side after the admission of these two revision petitions another affidavit from the advocate who had been appearing for Chunilal in the District Court was also filed. Reading these two affidavits together it appears to me to be reasonably clear that both the parties agreed before the learned District Judge that I.A.No. 320 of 1946 on the file of the Sub-Court should be remanded to that court for di