A.S.P. Ayyamperumal Nadar (died) and another vs S. Singaram Chettiar and another

Anantanarayanan, C.J.—The principle which is involved in these revision proceedings was very clearly enunciated by the Division Bench of

Venkatasubba Rao and Cornish, JJ. in Megraj Iswaradas Vs. The Corporation of Madras, . I may also state that this principle has been

enunciated in Mullah''s Civil Procedure Code, 13th Ed., Volume 1, page 344, second paragraph, in very similar terms. Where there is a court sale

of immoveable properties and the decree holder has leave to bid and set off and thereby takes the properties and another decreeholder

approaches the court for rateable distribution, the decreeholder-auction purchaser must be allowed to make a choice. He may elect to have a

resale of the properties in the hope that the resale may fetch a substantially large amount. Otherwise, if he desires the sale to be confirmed and

desires to continue in possession of the properties, he must pay into court so much of the sale price as becomes due on rateable distribution on the

principle of S. 73, C.P. Code to the rival decreeholder or decreeholders. See also Navaj v. Totaram 33 Bom. L.R. 503 and Murugappa v.

Ramaswami 159 I.C. 228 . The principle has been referred to, though in a different context, by Kunhammed Kutti, J., in N.A.R. Subbiah Chettiar

Vs. S.M. Viswanathan Chettiar (dead) and Others, . Under those circumstances, the decree in this case being for a larger amount than the actual

amount for which there has been bidding and setting off, the claims of the decreeholder auction purchaser and the two rival decreeholders must be

applied in proportion or rateably to the sale price and the decreeholder auction purchaser will have to pay the other two decreeholders their

respective amounts so determined. That is what the court below has directed and it is a perfectly proper order. I here merely desire to record the

statement of learned counsel for the decreeholder (Sri Sivamani) that his client is in possession of the properties by virtue of the confirmed sale, an

application by the judgment debtor to have it set aside having been dismissed in civil miscellaneous appeal in this court, and that therefore, the

decreeholder auction purchaser does not elect to have a resale.

The orders are correct and the civil revision petitions are therefore dismissed. No order as to costs.