Authored By : Macpherson, T. Ameer Ali

Macpherson and T. Ameer Ali, JJ.

1. The appellant having purchased a share of a taluk at anexecution sale failed to pay the balance of the purchase-money, and there was aresale at which the price realised was much smaller than the price realized atthe first sale. Both Courts have held that the appellant must make good thedeficiency according to the terms of Section 293 of the Procedure Code. Thedecree-holder is the person seeking to enforce the payment and the respondentin the appeal.

2. A preliminary objection is taken that no appeal lies, butthere is a current of decisions in this Court dating from 1865, showing that anappeal does lie, and we feel bound to follow them. The cases are Sree NarainMitter v. Mahatab Chand (1865) 3 W. R. 3; Sooruj Buksh Singh v. Sree KishenDoss (1866) 6 W. R. M 126; Joobraj Singh v. Gour Buksh Lall (1867) 7 W. R. 110;and Baij Nath Sahai v. Moheep Narain Singh L I..R (1889). 16 Cal. 535 [LQ/CalHC/1889/44] . Nodecision to the contrary has been cited, although the question has been raisedin several other cases but not decided. The first three cases were under theCode of 1859 as amended by Act XXIII of 1861, but there is in this respect nosubstantial difference between the old Code and the present Code. The MadrasCourt has taken the same view in Amir Baksha Sahib v. Venkatachala Mudali I.L.R(1895) . 18 Mad. 439. The Allahabad Court took a different view in Deoki NandanRai v. Tapesri Lal (1892) I.L.R. 14 All. 201 and held that there was no appeal.But it may be noticed that Mr. Justice STRAIGHT dissented, and Mr. Justice Knoxseems to have held that an appeal would lie from an adjudication in proceedingsto enforce an order under Section 293.

3. In all the cases in which it was held that an appeal laythe question was regarded as one under Section 244 of the present Code, or thecorresponding section of the old Code, so that if there is an appeal at all thereis no doubt as to the right of second appeal. It seems that before the resalethe appellant applied to have the first sale set aside under Section 313 of theCode on the ground that the judgment-debtor had no saleable interest in theproperty. It was found that what was sold was the judgment-debtors interest ina shikmi taluk called Radha Govind Biswas with a rental of Rs. 890 odd, andcomprising certain mouzahs, hi smuts and paras, whereas what was advertised andput for sale was his interest in a shikmi taluk called Ram Govind Biswas with arental of Rs. 495, but comprising the same mouzahs, kismuts and paras. Thefirst Court refused to set aside the sale, holding that the misdescription wasimmaterial, as the judgment-debtor had no other shikmi taluk in those mouzahs,and that the appellant, who was his co-sharer, must have known this andunderstood quite well what he was buying. The order rejecting the applicationwas upheld by the Appellate Court on the same grounds. The property was put upat the first sale, realised Rs. 3,200, the next highest bidder-being thedecree-holder, and when put up at the second sale under precisely the samedescription, it realised Rs. 850. The decree-holder had obtained leave to bidat the second sale, provided he did not bi(sic) 100.

4. The appellant resisted the attempt to make him liable onthree grounds: first, that there was no such property as the one sold; second,that the decree-holder and judgment-debtor had made false representations tohim as to the property which was being sold; and, third, that the purchaser atthe second sale was a mere benamidar of the decree-holder. His objections wereoverruled by both Courts without any inquiry, and an order was made for therealization of the deficiency by the process prescribed for the execution ofdecrees. We cannot, of course, interfere with the order under Section 313, orwith the order confirming the second sale, which it appears has been confirmed,but the question is whether on the facts as stated above the appellant isliable for the deficiency, and we must hold that he is not in any view of thecase.

5. Before the defaulting purchaser can be made liable underSection 293, it must appear that the property which is the subject of the twosales is the same in every respect. If the Courts were right in holding in theproceeding under Section 313 that, notwithstanding the misdescription, theproperty sold on the first occasion was the judgment-debtors share in shikmitaluk, Radha Govind Biswas, bearing a rent of Rs. 890, it is clear that is notwhat was put up for sale on the second occasion, ostensibly at-least. It may besaid that the same property was really sold, but that there was amisdescription on both occasions. Assuming this to be so, it makes no difference.If there was a misdescription on the first occasion the decree-holder was awareof it, and he ought not to have had the property again proclaimed for saleunder a description which he knew to be wrong. Having done that lie cannot makethe defaulting purchaser answerable for the deficiency.

6. It is not necessary to consider what would have happenedif the property which the Courts considered was the property sold on the firstoccasion, had bean rightly described on the second, as we must deal with the factsas they are. Possibly in that case the decree-holder might have found himselfin a difficulty in attempting to realize from the defaulting purchaser anydeficiency in the price. He cannot, however, be allowed to evade thatdifficulty by having the property proclaimed for sale under a description whichhe knew to be wrong.

7. We set aside the order of both Courts. The application ofthe decree-holder fails and must be rejected. The appellant will get his costsin this Court.

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Kali Kishore Deb Sarkarvs. Guru Prosad Sukul (17.06.1897- CALHC)