Amir Badsha Sahib vs B. Venkatachela Mudali

Shephard, J.—The question raised in this appeal is whether an appeal lies against an order refusing relief to a decree-holder as against the

bidder at an auction sale who is alleged to have made default.

The 293rd section of the code provides that the deficiency of price, resulting on a resale occasioned by the purchaser''s default shall be certified

to the court by the officer conducting the sale,. ""and shall at the instance of either the judgment-creditor or the judgment-debtor be recoverable

from the defaulter under the rules contained in the chapter for the execution of a decree for money.

No such certificate as the section contemplates appears to have been made. The decres-holder alleging the bidder''s default simply asked for a

warrant against the alleged defaulter. This application was dismissed by the District Munsif on the merits. On appeal being made the District Judge

held that he had no jurisdiction to entertain it. The 293rd section is not one of the sections mentioned in the 588th section. The only ground

therefore on which it can be held that an appeal lies; is that orders made in respect of an alleged default by the purchaser are in the-nature of

decrees and that the parties affected must be deemed to be parties to the suit within meaning of 244th section. This was the view taken by the Full

Bench of the Allahabad Court in a case decided with reference to the Code of 1859, and Act XXIII of 1861 Ramdial v. Ramdas (1875) ILR A.

1888 It must be presumed that the case was present to the mind of the Legislature when the Codes of 1877 and 1882 were under consideration,

and that if the decision was thought to be wrong, an alteration would have been made in the section so as to make the matter clear in the future.

This has not been done. The 293rd section, of the code merely reproduces the 205th section of the. Code of '', 1859 with immaterial variations of

language. In the same Court it has also been held with reference to the 411th section of the Code that the Government seeking to recover the

amount of Court fees payable under a decree obtained by a pauper plaintiff, is placed in the position of a party to the suit and that accordingly an

appeal lies against an order made under that section. The language of the section is similar to that used in the 293rd section Janki v. The Collector

of Allahabad I. L. R. (1875) A. 188 In Calcutta the precise point which now arises was in 1889 decided in favour of the appellant Baijnath Sahi v.

Mohup Singh ILR (1881) C. 635 In Madras the point does not seem to have been decided in any reported case. The case of Vallabham v. Pang

unni. ILR (1889) M. 454 only goes to show that, where the contest is between the judgment-debtor and the decree-holder who is alleged to have

made default, the question between them must be treated as a question arising between the parties to the suit within the meaning of the 2,44th

Section.

As against the view above stated in favour of an appellant there is the recent case of Deoki Nandanrai v. Sapesri Lal I. L. R. (1892) A. 208 In

the Judgment in this case stress is laid on the fact that, whereas the 294th section is mentioned, the 293rd section is not mentioned in Section 588

and considerable weight is attached to the decision of the same Court in Rahim Baksh v. Dhuri I. L. R. (1889) A. 397 I am unable to admit the

force of the argument suggested by the reference to the 294th section. The section contains no such language as is contained in the 293rd section,

and because the Legislature thought fit to give an appeal, and that a final appeal, against orders passed under the 294th section, it does not follow

that they intended orders made under the 293rd section to be final.

As to the decision in Rahim Bakhsh v. Dhuri I. L. R. (1889) A. 397 it is to be observed that it turns on another section, the 315th, the language

of which is in a marked way distinguishable from that used in the 293rd. In the latter section the imperative mood is used throughout, whereas in

the 315th the language is permissive. The liability for the repayment of the purchase money may be enforced under the provisions of that section, or

the aggrieved purchaser may recover it by suit. Munna Singh v.Gajadhar Singh6. It appears to me that no such option would be open to the

judgment-creditor or judgment-debtor seeking to recover from a defaulting purchaser the loss i, occasioned by a resale. The section says distinctly

that the money shall be recoverable under the rules contained in Chapter XIX. In this respect the language of the 293rd section agrees with that of

the 411th. If the decision already cited with regard to the latter section is correct, I fail to see why similarly, under the 293rd section, the purchaser

should not be treated as a party to the suit. The effect of the whole section, as 1 read it, is to make the certificate of the officer conducting the sale

equivalent to a decree and to put the aggrieved person and the defaulter in the position of decree-holder and Judgment-debtor. Unless this

construction is put upon the section the anomaly results that in the case of the judgment debtor complaining of default made by the decree-holder

who has had leave to bid there is an appeal and a second appeal while in the case of the creditor complaining of default made by a third person

there is no appeal and no other remedy open to the judgment-creditor.

The present case appears to me to fall within the principle of the decision of the Privy Council in (1892) L.R. 19 I.A. 166 (Privy Council) There

it was held that the 244th section was applicable notwithstanding that the purchaser against whom the sale was sought to be set aside had been no

party to the farmer suit. It was observed that ""Their Lordships are glad to find that the courts in India have not placed any narrow construction on

the language of Section 244, and that when a question has arisen as to the execution, discharge, or satisfaction of a decree between the parties to

the suit in which the decree was passed the fact that the purchaser who is no party to the suit is interested in the result has never been held a bar to

the application of the section."" Here I conceive there can be no doubt that the question is one relating to the execution, discharge or satisfaction of

a decree.

Holding therefore, that an appeal does lie against on order passed u/s 293., I would reverse the order of the Lower Appellate court and remind

the application for disposal on the merits. Costs to be provided for in the revised order.

Best J.

I concur.