The application for setting aside of sale should be treated as such even if not expressly praying for it, and the completion of the sale is determined by the acceptance of the bid and the deposit made.

Findlay, J C—I am of opinion in this case that the orders of the lower Courts are improper ones. The learned District Judge, on the authority Of Tipangavda v. Ramangavda, 1920 22 BLR 35 and Raoji Baburao v. Bansilal, 1919 21 BLR 835, has held that the application, dated 3rd September 1926, apparently presented to the Court on 4th September 1926, could not be held to amount to an application for setting aside the sale. In the 43 Bombay case quoted, there was apparently a mere deposit without application, a receipt being obtained from the nazir. In the 44 Bombay case quoted, no application to, or communication with, the civil Court was made. Here, the application was presented in the Court and there can be no question whatever, but that it was in effect intended to be an application under Rule 89, Order 21, Civil P.C., although, in the terms thereof, there was no express prayer for the setting aside of the sale. The reader's report shows that it was, however-supposed and presumed to be such and the application in question was duly signed by the Subordinate Judge.

2. It is true that the report of the reader on the back of the application is not necessarily authoritative, but that report stated that the application was one for the setting aside of the sale. Although this was not so, having regard to the actual phraseology of the application, it was treated as such by the Subordinate Judge who signed the report and allowed the money to be deposited. In those circumstances, I am unable to concur with the lower Courts that the application was not, in effect, one for the setting aside of the sale. In view of its purport and terms, this was precisely what it was and it could indeed have been nothing else. On any reasonable construction of the document, therefore, it must be held that there was an application on 4th September 1926 for the setting aside of the sale, and it is not disputed that the applicant had made the necessary deposit therewith, as required by Rule 89, Order 21, Civil P.C.

3. The next point, which arises for decision, is whether the application of 4th September 1926, was made within 30 days of the sale. On that point, I am of opinion that limitation ran not from 3rd August 1926, but from 5th August 1926. The bid was only accepted on 5th August 1926 and, having regard to the terms of R. 84, Rule 21, I do not think the sale can be said to have been completed until the the bid had been accepted and the deposit of 25 per cent, had been made. So long as the bid was not accepted, it is impossible to say in my opinion that the sale was completed.

4. It follows, therefore, in my opinion that the Judge of the first Court was not entitled to confirm the sale: the order of 13th November 1926 passed by the Subordinate Judge, is reversed and Execution Case No. 187 of 1925 is remanded to his Court for disposal according to law in accordance with the above remarks. The present applicants' costs in this Court and in the lower appellate Court will be borne by the non-applicant, decree-holder. I fix Rs. 15 as pleader's fees.