The decree-holder is entitled to make the application for re-sale within three years as per the Limitation Act, and there is no requirement for a 'reasonable time' for re-sale as per the Civil Procedure Code.

Alfred Henry Lionel Leach, C.J.

1. The appellant obtained a money decree against the second respondent in the Court of the District Munsif of Tirupur and in execution of that decree attached immovable property belonging to the judgment-debtor. The property was sold by the Court in execution proceedings on the 23rd February, 1932, the first respondent being the purchaser. The first respondent immediately deposited 25 per cent, of the purchase price, which was Rs. 715, as required by Rule 84 of Order 21 of the Code of Civil Procedure. The sale proclamation disclosed that there was a mortgage on the property, but it indicated that the mortgage was invalid. The mortgage was in fact a valid one and subsequently the mortgagee obtained a mortgage decree. The first respondent did not pay the balance of the purchase money within fifteen days, as required by Rule 85 of Order 21, but on the 29th February he applied for an order setting the sale aside on the ground of material irregularity in the publication of the sale inasmuch as the mortgage had been described as being invalid. As the balance of the purchase money had not been paid into Court the District Munsif held that there had in law been no sale and therefore there was no need for an order setting aside the sale. On this ground he dismissed the first respondents application and by a subsequent order directed that his deposit of 25 per cent, of Rs. 715, namely, Rs. 178-12-0 should be refunded to him. On the 30th March, 1932, the District Munsif, for what has been described as "statistical reasons", struck off his list of pending cases the application of the appellant for the sale of the second respondents property. The Court closed for the summer vacation on the 11th May, 1932, until the 28th June, 1932. On the reopening day the appellant filed a fresh application for the sale of the same property. He was compelled to do so in consequence of the District Munsif s action on the 30th March, 1932, which action was illegal. As the result of the fresh application the property was advertised for sale by the Court on the 24th September, 1932. There were no bidders at the auction and the District Munsif dismissed the application. This again constituted unlawful action on his part. The fact that there were no bidders on this occasion did not prevent the appellant from asking the Court in the same proceedings to put up the property for sale at a later date. The 25th September, 1932, was a Saturday and the Court was closed. When it reopened on Monday, the 27th September, the appellant filed a further application for the sale of the property and on this application the Court directed the auction to take place on the 3rd January, 1933. At this auction the property was sold to one Somasundara Naidu for Rs. 301, leaving a deficit of Rs. 414, On the 25th November, 1933, the appellant applied for an order against the first respondent for the payment of this sum under the provisions of Order 21, Rule 71, which states that any deficiency of price which may happen on a re-sale, by reason of the purchasers default, and all expenses attending such re-sale, shall at the instance of either the decree-holder or the judgment-debtor, be recoverable from the defaulting purchaser.

2. The District Munsif dismissed the application on three grounds, namely : - (1) There had been material irregularity in the publication of the sale of 23rd February, 1932; (2) the property which was sold to Somasundara was not in law the same property as was sold to the first respondent, a mortgage decree having been passed in the meantime; and (3) even if the property was the same there had been undue delay in filing the application which had led to the second sale, namely, the application of the 27th September, 1932. The appellant appealed to the Court of the Subordinate Judge of Coimbatore. The Subordinate Judge allowed the appeal. He found that the appellant had not been guilty of culpable delay and that the property whi