Confirmation of sale held illegal.

JUDGMENT : The defendant judgment-debtor in O. S. No. 4 of 1942 on the file of the Subordinate Judge, Sivaganga, was the appellant in the lower appellate Court and in the appeal in this appeal.

2. One Panchaksharam Chettiar obtained a decree on 25-9-1942, against the appellants father for recovery of Rs. 3300 odd in O. S. No. 4 of 1942, on the file of the Subordinate Judge, Sivaganga. The appellants brother filed I. A. No. 18 of 1950 on 14-9-1949 under S. 19 of Madras Act IV of 1938 to have the debt scaled down. An order was passed in that application on 29-8-1950 scaling down the debt to Rs. 2100 odd. The appellants brother preferred an appeal A. S. No. 3 of 1951 to the District Judge, Ramanathapuram, praying that the debt be scaled down to a lower figure. The District Judge passed an order on 20-8-1951 not refusing merely that further scaling down that was prayed for, but disallowing altogether the appellants claim to scaling down. He declared that the amount payable by the appellant and his brother under the decree was the amount due on the decree dated 25-9-1942 in accordance with its apparent tenor.

That was a wholly wrong order to make because the respondents, the legal representatives of Panchaksharam Chettiar, who had obtained the decree, had themselves not appealed from the order passed by the Subordinate Judge scaling down the debt to Rs. 2100 odd. The District Judge had either to accede to the request of the appellants brother to have the debt scaled down further or to dismiss the appeal thereby maintaining the debt at the level to which it had been scaled down by the Subordinate Judge in I. A. No. 18 of 1950. Against the order of the District Judge, the appellants brother preferred O. M. S. A. No. 29 of 1952 on the file of this Court,

3. On 26-10-1951, that is about two months after the District Judges order dated 20-8-1951, in A. S. No. 3 of 1951, the respondent filed E. P. No. 116 of 1951 for sale of the residential house of the appellant and his brother to recover Rs. 5200 odd due on the decree dated 25-8-1942. In C. M. S. A. No. 29 of 1951 the appellants brother applied for stay of execution, but he was not able to furnish the security required. The execution proceedings in E. P. No. 116 of 1951 proceeded to the stage of sale. The 2nd respondent had obtained permission to bid at the sale and set off the amount due on the decree.

The 2nd respondent purchased the property at the Court sale held on 20-10-1953 for Rs. 4500. Since the amount recoverable on the decree as it stood on that date was over Rs. 5000 the 2nd respondent set off the purchase money against a part of the decree debt and paid only poundage. Confirmation of the sale was delayed by reason of proceedings which need not be set out here. While the sale was pending confirmation, C. M. S. A. No. 29 of 1952, which had been filed by the appellants brother against the order of the District Judge, Ramanathapuram, in A. S. No. 3 of 1951, was allowed by this Court on 17-1-1955 and the debt was scaled down to the level of at which it stood, namely, Rs. 2100 odd, under the order passed by the Subordinate Judge on 28-8-1950 in I. A. No. 18 of 1950.

The decree-holders did not report to the executing Court that the debt had been so scaled down. In the belief that a sum in excess of Rs. 4500 continued to remain due on the decree the executing Court passed an order on 24-8-1955 confirming the sale and recording part satisfaction of the decree to the extent of Rs. 4500. In due course, a sale certificate was issued and, in pursuance of the sale certificate, the decree-holder purchasers took delivery of the property on 8-10-1955. On 26-1-1956 the appellant filed the application which has given rise to this appeal under Ss. 47, 144 and 151 C. P. C. praying that the sale which had been held in E. P. No. 116 of 1951 be set aside, that the property be redelivered to the appellant and that he be permitted to pay the decree amount in instalments, as provided by Act I of