Case: Sri Ranga Nilayam Rama Krishna Rao Vs. Kandokori Chellayamma Alias Mangamma And Another

to run from the date when the original court of execution confirms the sale. But, as was pointed out by the Privy Council, the High Court as an appellate court had the same powers as the trial court and it is only when the appea1 was dismissed by the High Court that the order of the trial court confirming the sale became absolute. Till the decision of the appellate court, no finality attached to the order confirming the sale.(17) It is clear that in this case the same rule would apply to the order recording satisfaction of the decree and to the order confirming the sale. If the order recording satisfaction of the decree was not final and remained an inchoate order untill the appeal was decided the order confirming the sale would have the same inchoate character. This position seems to have been fully conceded in the statement of their case filed on behalf of the respondents in this Court.(18) It is quite clear that in this case the learned judges of the High Court have taken up an Inconsistent position. As I have already stated, they have held, for the purpose of allowing one of the appeals that the judgment-debtors were not hit by cl. (D) of the proviso to S. 3 of the Act because they ceased to be the owners of Tedlam village at the date of the sale in 1935. If this conclusion is correct, it must follow as a matter of logic that the decree was completely satisfied on the date of the sale, because the sale fetched a larger amount than what was payable under the decree and the excess amount was deposited by the decree-holder in court. The sale and satisfaction must go together and if finality is to be attached to the sale it should have been held to attach also to the order recording satisfaction of the decree. It seems clear to me that if the decree had ceased to exist, no relief could be claimed by the judgment-debtors under the Madras Act.On the other hand, if the appeal had to be decided on the footing that the order recording satisfaction of the decree was not final, the same approach should have been made in regard to the effect of the sale. It is also clear that if the decree was satisfied on the date of sale by the application of the provisions of the Act, the sale could not stand, because how could the property be sold in execution of a decree which had been already satisfied? Yet, notwithstanding the fact that nothing was due under the decree, the High Court has held that the sale was a good sale and was to stand. The correct approach to the case would have been to assume for the purpose of the appeals that neither of the orders passed by the subordinate judge was final. On that view, the appeals to the High Court could not have been decided on the footing that the judgment-debtors had ceased to be the owners of Tedlam property and were therefore not hit by cl. (D) of the proviso to S. 3 of the Madras Act. In my opinion, the judgment of the High court cannot be sustained, and the appeals will have to be allowed.(19) I will now deal very briefly with two preliminary objections raised on behalf of the Respondents. The first objection is that the application for leave to appeal to His Majesty in Council against the order of the High Court was barred by limitation, inasmuch as the reasons stated in the affidavit filed by the appellant in the High Court in support of his application for excusing delay do not constitute sufficient reason within the meaning of S. 5, Limitation Act. The answer to this objection will be found in the facts which have been already narrated. The delay was caused mainly by reason of the review of the order of the High Court and the High Court considered that there was sufficient reason for condoning the delay. This Court cannot override the discretion exercised by the High Court and the matter cannot be reopened in these appeals. The second objection is based on the fact that the decree-holder was given a choice by the High Court to elect whether he would deposit the purchase money or have the sale set aside, and his counsel told the learned judges on the 15-11-1946, that his client wished to retain the property which he had purchased and pay the purchase money in cash. It is contended that in view of this statement it was not open to the appellant to contend that he need not pay any amount to the judgment-debtors. This objection also is entirely devoid of any substance, because there is nothing on record to show that the appellant has consented to be bound by the order of the High Court and waived his right to appeal against it by reason of the election.(20) The learned counsel for the respondent also contended that the sale should have been set aside by the High Court because the permission given to the decree-holder on 16-2-1934 to bid and set off the decretal amount against the purchase price was confined to an earlier sale and did not extend to the sale which took place on 16-3-1935 after the upset price which had been originally fixed was reduced. Personally, I am inclined to hold that the permission covered the sale in question, but in any case it is difficult to hold on the facts stated that there was any such material in regularity as would vitiate the sale. The precise argument which is put forward here was advanced in the courts below but it did not find favour either with the Subordinate Judge or with the High Court. Besides, the respondents cannot raise the point in these appeals because they have filed no appeal against the order of the High Court upholding the sale.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]5. If this conclusion is correct, it must follow as a matter of logic that the decree was completely satisfied on the date of the sale, because the sale fetched a larger amount than what was payable under the decree and the excess amount was deposited by the decree-holder in court. The sale and satisfaction must go together and if finality is to be attached to the sale it should have been held to attach also to the order recording satisfaction of the decree. It seems clear to me that if the decree had ceased to exist, no relief could be claimed by the judgment-debtors under the Madras Act.On the other hand, if the appeal had to be decided on the footing that the order recording satisfaction of the decree was not final, the same approach should have been made in regard to the effect of the sale. It is also clear that if the decree was satisfied on the date of sale by the application of the provisions of the Act, the sale could not stand, because how could the property be sold in execution of a decree which had been already satisfied? Yet, notwithstanding the fact that nothing was due under the decree, the High Court has held that the sale was a good sale and was to stand. The correct approach to the case would have been to assume for the purpose of the appeals that neither of the orders passed by the subordinate judge was final. On that view, the appeals to the High Court could not have been decided on the footing that the judgment-debtors had ceased to be the owners of Tedlam property and were therefore not hit by cl. (D) of the proviso to S. 3 of the Madras Act. In my opinion, the judgment of the High court cannot be sustained, and the appeals will have to be allowed.(19) I will now deal very briefly with two preliminary objections raised on behalf of the Respondents. The first objection is that the application for leave to appeal to His Majesty in Council against the order of the High Court was barred by limitation, inasmuch as the reasons stated in the affidavit filed by the appellant in the High Court in support of his application for excusing delay do not constitute sufficient reason within the meaning of S. 5, Limitation Act. The answer to this objection will be found in the facts which have been already narrated. The delay was caused mainly by reason of the review of the order of the High Court and the High Court considered that there was sufficient reason for condoning the delay. This Court cannot override the discretion exercised by the High Court and the matter cannot be reopened in these appeals. The second objection is based on the fact that the decree-holder was given a choice by the High Court to elect whether he would deposit the purchase money or have the sale set aside, and his counsel told the learned judges on the 15-11-1946, that his client wished to retain the property which he had purchased and pay the purchase money in cash. It is contended that in view of this statement it was not open to the appellant to contend that he need not pay any amount to the judgment-debtors. This objection also is entirely devoid of any substance, because there is nothing on record to show that the appellant has consented to be bound by the order of the High Court and waived his right to appeal against it by reason of theThe learned counsel for the respondent also contended that the sale should have been set aside by the High Court because the permission given to the decree-holder on 16-2-1934 to bid and set off the decretal amount against the purchase price was confined to an earlier sale and did not extend to the sale which took place on 16-3-1935 after the upset price which had been originally fixed was reduced.Personally, I am inclined to hold that the permission covered the sale in question, but in any case it is difficult to hold on the facts stated that there was any such material in regularity as would vitiate the sale. The precise argument which is put forward here was advanced in the courts below but it did not find favour either with the Subordinate Judge or with the High Court. Besides, the respondents cannot raise the point in these appeals because they have filed no appeal against the order of the High Court upholding the sale.