726 ,;

GOPAL KRISHNA DAS

ll.

SAILENDRA NAill BISWAS & ANR.

February 26, 1975

JY. V. CHANDR.ACHUD, R. S. SARKARIA AND A. C. GUPTA, JJ.]

Cil'il Procedue Code-Order 21 Rule 71-; eaning of deficien_cy of price accrued by reason of the auction purhasers default-Wf:ether defic1en"'t l!old 'lie attributable to the default of auct1on purchaser--Sectlon 12(2) of L1munr, on "Act 1963-Time requisite for obtaining certified copy-Whether means time

'properly required or includes time spent neRli~:enrly.

. A

The appellant was one of the joint owners of the premises in question. In , execution of a money decree obtained agn.inst the appellant his share in the

property was put to sale and was purchased by the father of the first respondent

 C -~ jor Rs. 77,000. 1be purchaser deposicd 25 per ent of the purchase price.

T he property was put to sale once agam and was m fact knocked down for a

um of Rs. 700/ in favou.r of the father of respondent No. 1. The apellant :.Uade an application under Order XXI Rule 71 of C.P.C. for recovenng the :

deficiency in the price realised in the second sale from the purchase. Order XXI Rule 71 C.P.C. reads as under :-

J I I l -1 .. Any deficiency of price which may happen on a re-sale by reason of the purhaser's defJult and nit expenses attending such re-sale, shall be certified to the Court by the Officer or other person holding the 5alc, and shall nt the instance of either the decree bolder or the judFment Jcbtor, be recoverable from the defaulting purchaer under the provisions relating to the execution of a decree for the payment of money ...

I D . l

The proclamation of sale for the first sale stated that the premises were free from encumbrances. Proclamation for the seconJ sale, however, states that the , entire grou11d floor excepting two road-side shops, was let out. ..

The !..earned Single Judge allowed the nppli::ation of the nppeUnnt and . direc1ed t~1e pur<; hao.; er ta pay the dcfitit:nc:y with interest. The Division Bench

of the H•gh O.mrt 011lowcd the appc:al unJ dismissed applicotion filed by the appelJunt. unde.r Ordr .xxr. Rut~ 71 !or recovering from the auction purchar

t~ defi.cuncy tn the satd pnce. On llPpeal by certificate undc:r Article t33ll ~(a) . & (c) tt wa$ contend!!d before this Court by th~ appellant that he was enutled . to recover from the first rsponJent the deficiency in the price reali:;, cJ in th'"

S'!cond "'le under Order XXl Rule 71. The resrondent contended that the . appellant can ro; over t!le dcfficiency in the second sale only if it can be attributed

to ddault of the auctJon purchaser.

HELD:

e application of Order XXI rule 71 i~ limited to c:1scs in which the ddlctency of pr1ce ha., <>ccl'rrcd by rt:lwn of the auction purchaser•s default . .Property oce put to hale in exution procecJings m:ty hav~: to be resold tor

rea\On~ whtch .m>tY or may not \le connected with the ddault of the auction G purc.har. It not c~OO!!h that the rt, alc i~ occ:t'\ioneJ. by the default of the

. fi~Cllon purcar. .Jt l'i fur!her nces, ary thnt the re ... ale must result in a dfi

'Jency of pree whh defictcncy 1s uttributahle to th-e udault of the aucuon

rurch:tlo(t. fn the fil"'tt rr!lclamation of ll>lo there wus no mention of the.le:lSef In the ond proclamation the lae ha" been m--ntioned. In the ctty 0

Clcl!J.ta were premi'l~5 nre . .., ituated, the We'lt Dcngl Premises Tenancy Act,

19~6 wa~ ID f?r~~ nt the t1me of the scond sale.

Under that Act tn:nts enJ?Yed te pnv1lege5 of stanJard rnt nnd . immunity from evi:tion. 1ht:. rdt:roce m the se1.ond sat~ proclamation to n lca<>e and to the fact that su\:1- Jl

$lnttl part _of the. property was in on.'\lpntion of the tenant wa.1 bound to

nfle~~ the markt!a.bllity of the property. Order XXI rule 71 h intndl!l I!J v~O\ ldc:r ID cxpcdtiJOUS remedy to the juuj!ment debtor or the decree hoiJC'I' W~

~)~~Dld • detriment due to the default of the auction purhascr. [n ~>c. '

G, K. DAS v; S, N. BlSWAS (Clumdrachud, J.) 727

(2) The apreal before the Division Bench was not time barred. The time requisite for obtaining certified copy means time properly required and an appellant cannot in computation of the period of limitation for filing the appeal ask for exclusion of time which was spent negligently. In the present case settlement of the draft decree was adjourned from time to time by an officer of the court on being properly satisfied that there was good reason for adjournment.

The Auction purchaser cannot be blamed for the time thus spent in settling the draft of the decree unckr appeal.

[734F-G]

B CIVIL APPELATE JURISDICTION : Civil Appeal no. 10, ?.332 &

2333 of. 1968.

From t\le Judgment & Order dated the 21st March, 1967 of the Calcutta High Court in Appeal Nos. 9, 10 and 43 of 1959.

P. K. •Sen and G. S. Chfltterjee, for the appellant.

A. K. Sen, P. K. Chatterjee, Rathin Das and Mrs. Anjana Sen; for respondent No. 1 .

The Judgment of tlie Court was delivered by

CHANDRACHUD, J. Premises No. 4-A, Chowringhee Road, Calcutta, belonged to the appellant Gopal Krishna Das and four others, each having an undivided one-fifth share therein. In 1951, one Ganga Prasad Gupta obtained two money-decrees against the appellant. and another person i1a the total sum of Rs. 12,378. In execution of these decrees, the undivided one-fifth share of the appellant was put to sale on June 16, 1954 a't1d was purchased by Pashupati Nath Biswa'3, the father of the first respondent, for:. Rs. 77,040.

Pashupati Nath Biswas deposited Rs. 19,260 in the court, being 25% of th~ purchase price and later he deposited a further sum of Rs. 15,0{)0.

He however, failed to pay the balance of the purchase price whereupon the appellant made an application that the property be put to a fresh sai.e.

Accordingly. the /property was put to sale on March 20, 1957 and once again Pashupati Nath Biswas was the highest bidder. But whereas in the first sale he had offered a bid of Rs. 77,040 this time the sale was knocked down in his favour for a paltry sum of Rs. 700. The second sale was confirmed on May 29, 1957.

In the meanwhile, on May 16, 1957 the Sheriff certified unLl'!r Order XXI, Rule 71 of the Code of Civil Procedure that the deliciency in the price realised in the second sale due to the default of the auction purchaser, after giving him credit h the sum of Rs, 15,000 paid by him in the first sale," amounted to Rs. 61,340 apart from the cost and expenses of the sales.

Ol1 June 28, 1957 the appellant made an application under Order XXI, Rule 71 C.P .C. for . recovering the deficiency from Pashupati -Nath Biswas.

A learned single Judge of the Calcutta High Court allowed that application and direct by an order dated August 19, 19 5 S that Pashupati Nath Biswas do pay to the appellant a sum of Rs. 42,080 with interest at 6% per annum.

This Oider was challenged by Pashupati Nath Biswas in appeal No. 10 of 1959.

The auction purchaser had alsp filed an application asking that the appellant be restrained from taking execution proceedings for recovering the deficiency in price. That prayer was rejected. It may be mentioned that pursuant to an application dated April 13, 1957 filed by the auction purchaser himself, it was directed by an order dated May 21, 1957 that a sum of Rs. 22,000 be paid by the Sheriff out of the sale proceeds lying with him, to the Official Receiver in satisfaction of the decree obtained by G-anga Prosad Gupta against the appellant, h1 execution of which the two sales were held. Ganga Prosad Gupta's estate, it seems, had come to be vested in the Official Rcciver, he is the second respondent to these appeals. The auction purchaser prayed that the Sheriff do pay to him the balance after deducting therefrom the sum of Rs. 22,000 and the cost and the expenses of the Sheriff.· This prayer was also rejected.

The auction purchaser f1leu appeal No. 9 of 1959 against the order rejecting this application.

The appeUant then filed an application for a~1 order directing that the Sheriff do pay to him all the moneys lying with him after deducting the cost and the expenses of the sales. That application was allowed by the learned single Judge on December 11, 1958. The auction purchaser challenged that order in appeal No. 43 of 1959.

The three appeals were heard together and disposed of by a Division Bench of the Calcutta High Court by three separate judgment!5.

By its judgment dated March 21, 1967 the Division Bench allowed appeal No. 10 of 1959 and dismissed the application filed by the appellant under Order XXI, Rule 71 for recovering from the auction purchaser the deficiency in the sale price. The two other appeals were disposed of consistently with that judgment. The auction purchaser Pashupati Nath Biswas having died on April 16, 1964, the first respondent Sailendra Nath Biswas came on the record of the appeals as his Executor 3nd legal representative. On December 15, 1967 the . High Court granted to the appellant leave to file an appeal to this Court under Article 13 3 ( 1 )(a) and (c) of the Constitution.

Questions raised in the High Court by the rival parties as regards the disbursement by the Sheriff ef the balance remaining with him after satisfying Ganga Prasad Gupta's decree are incidental to the main controv"rsy arising out of the appellant's application under Order XXI, P 'llle 71, Code of Civil Procedure. The real question

for decision JS. whether the appellant i~ entitled under Order "XI, Rule 71, to recover from the first respondent the deficiency in the priCe realised in the second sale. .

The scheme of the Code in relation to execution sales is like this : G Under Order XXI, Rule 64 any Court executing a decree may order the sale of oa property in satisfaction of the decree. Order 21, Rule 66 provides that the Court shall cause a proclamation qf the intended sale to be made. Sub-Rule (2) of Rule 66 specifies the details which are required to be mentioned in the proclamation of sale. The person declared to be the purchaser must uQder Order XXI, Rule 84, pay immediately after the declaration a deposit of 25% of the purchase- H money.

In default of such deposit the property has to be re-sold forthwith.

By Rule 85 the full amount of purchas{}-money has to be paid by the purchaser within 15 days from the date of sale. If the

pwchaser commits a default, the deposit is liable to be. f;:, feited to the Government by virtue of Rule 86 and the property ts hable to be re-sold. A re-sale of property, in default of payment of the Pll; rchasemoney, can be-made only after the issue of a fresh proclamatiOn as provided in Rule 87. Under Order 21, Rule 71 :

"Any deficiency of price which may happen on a re-sale bv reason of the purchaser's default, and all expenses attending such re-sale, shall be certified to the Court by the officer or other person holding the sale, and shall, at the instance of either the decree holder or the judgment debtor, be recoverable from the defaulting purchaser under the provisions relating to the execution of a decree , for the payment f " o mcMey.

It is clear on a careful re.•ading of Rule 71 that its application is limited to cases in which the deficiency of price has occurred by reason of the auction purchaser's d0fault.

Property once put to snle in execution procoedi1ags may have to be re-sold for reasons which m11y

or may not be connected with the default of the auction purchaser.

A re-sale consequent on the failure of the auction purchaser o deposit 25% of the purchase price immediately after he is declared to be the purchaser of t:.e property or a resale consequent upon his failure todeposit the balance of the purchase price within 15 days of the sale are instances when the re-sale is occasioned by the default of the oauction purchaser.

OJ1 the other i1and, re-sale consequent upon the . . , etting aside of the sale on the ground of material irregularity iri

publishing or conducting the sale as provided in Order XXI, Rule 90, may not be attributable to the default of. the purchaser. The provisions of Order XXI, Rule 71, come into play only if the property i~ required to be resold on account of the default of the action purchaser.

If the re-sale is not due to the auction purchaser's default, there can be l1o question of mulcting him with the deficient y in the price realised in the re-sale. The words : "Any deficiency of price which ma} happen on a resale by reason of the purchaser's default'' occurring in Rule 71 therefore mean : "Any deficiency of price. which on a re-sale niay happen by reason of the purchaser's default".

As smted before, the question of holding the auction purchaser liable to make f.!OOd the deficiency in price can arise only if the re-sale is occasioned by bi!l default. But though, this is necessary, it is not enough to meet the requirements of Rule 71.

What is necessary is that the re-sale occasioned by the auction purchaser's default must result in a deficiency of price, which

deficiency is attributable to his default.

A resale may have to be held because the auction purchaser has committed default in payin~ the deposit of 25% under Order XXI, Rule 84, or because of his default in paying the full price which J.5 days of the sale as required by Rule 85. And yet the deficiency of price realised in the re-sale may not be attributable to his default as, for example, where the market value of the property is reduced to . the discovery or disclosure of an infirmity in the right, title and interest of the judgment-debtor in

the property put to sale. An encumbrance existing on the property at

16-470SCI/75

the time of the first sale but not disclosed in the proclam_ation of that sale will hav~;; no bearin, g on the price realised in the auction sale, unless the existence of the encumbrance was otherwise known to the bidders.

The disclosure of tnat enc-Lllllbrance in the sale proclamatirm accompanying the re-sale must, on normal commercial considerations, have a direct impact on the price of the property put to sale.

In such a case the deficiency of price realised in the~ resale will be attributable uot necessarily to the default of th~ auction

purchaser but to circwnstances extraneous to his default.

Or<ler XXI, Rule 71, concerns itself not with that class of cases but with those in which the deficiency of prict~ realised in the re-sale is

ttributable to the default of the aucHon purchaser.

Even a broad and non-too-meticulous examination of the two proclamation of sale in the instant case is enough to conclude that the deficiency in price realised in the re-sale cannot b~ said to have happened on account of the auction purchaser's default.

The first sale was held on June 16~ 1954 and the proclamation of sale accompanying it is dated May 10,. 1954. The second s:1lc v, as

held on March 20. 1957 for which the relevant sak proclamation is dated February 8, 1957.

Both the proclamations mention that what was being put to sale was the right, little and interest of the appellant, Go pal Krishna Das, in the undivided one> fifth share iR the particular property.

But there is a material difference in 1he terms of the two proclamations in regard to the encumbrances existing on the property.

The proclamation of 1954 sets out in a tabular form encumbrances like leases and mortgag~:; to which the property was :)rcviomly subjected. as appearing from the affidavit of one Damodar Mullick.

The proclamation then says :-

"It appears from the said affidavit that all the Mortgages have been reconveyed. The lease has expired.

The sale is in respect of the undivided 1 /5th sh'are of Pm•na Ch. Das.

It appears from the said affidavit that the 1/5th share of Gopal Kr. Das in the said premises is free from encumbraoces.''

The proclamation of 1957, relying on an affidavit of one Sudhansu :lumar Roy savs undoubtedly that th"'. appellant's one-fifth share was

free from encumbrances but the tabu1ar statement of encumbrances included in tbe proclamati()n refers to a Term Lease and Agree111ent of 1955 and the proclamation says :

"The :lease of 1955 is for five years from October, 1955 anr:l the same is in respect of the Restaurant "Bombay Crown" containinl! the enrire Qrnund flnnr 0 "1icentinptn1o road side shoos and was exeuted by one Abde Ali Abdul Hussain in favour of Ashtifaq and J afiar Hussain."

It is notorious. that orooerties jn possession of tenants who enioy the orotection of Rent Acts do not fP:tch. the same nrice as prcmerties of which the purchaser can obtain vacant possesion.

In the

city of Calcutta where the property in question is situated, The West Bengal Premises Tenancy Act, XII of 195(), was in force, at the time of the seond sale.

Under that Act the tenants enjoyed the privilegs of standard ren~ and immunity from eviction save on stated grounds.

It is unnecessary to enter into refinements arisin!l out of the West Bengal Act but even the sub:-tenants would appear to enjoy thereunder a certain :.imount of immunity from eviction.

Refrence may in this behalf b~ made to sections 13 (2), ( 4), (5) and section 16 of the Act of 1956.

The reference in the second sale proclamation to a live lease and suh I ease and to the fact that a substantial part of the property was in occupation of the tenant or the sub-tenant was bound to affect

the marketability of the prerty. The paltry price realised in the second sale may justifiably be attributed to the disclosure of encumbrances in the second proclamation, which were not mentioned in the fust proclamation. It is not without significanc~ that apart from the auction purchaser there were no bidders at the second sale. The paucity of bidders may , r:easonably be taken to reflect the fall in the value of the property in the estimation of prospective bidders .

Order XXI, Rule 71 is intended to provide an expeditious remedy to the judgment-debtor or the decree-holder who has suffered a detriment due to the default of the auction purchaser. The ,_Jficer or other person holding the sale has to certify to the Court the deficiency of price which oni the re-sale has happened by the purchaser's default and all expenses attending the re-sale.

Upon such certification the amount becomes recoverable from tne defaulting purchaser at the instance of the decree-holder or the judgment-debtor, "under the provisions relating to the execution of a decree for the payment of money".

The Code has not made the certificate conclusive of the facts stated therein and consequently it is permissible to the purchaser who is alleged to have defaulted to challenge the correctness of the certificate in all .its particulars.

But the object of certification, as evidenced even more clearly by the provision that the proceeding to recover the amount wi.ll be governed by provisions relating to the execution of a money-decree, is to eschew an elaborate inquiry into the comoetin& causes culminating in the deficiency of price.

This object can be achieved only if the property successively put to sale is in material

resoecfs icff'ntical. that is to sa!V. if the ri!!ht. t1+1e ::lnrl interr.st of the judgment debtor is put to sale under substantially the same description.

If that happens it is easy to predica+e that the deficiency of price has resulted on account of the purchaser's default.

But if, as here, what was shown as unencumbered in the previous proclamation is exoresslv described 1n the la.ter nrodamation as being subiect to an encumbrance which on a reasonable assessment is alculated to affect e market value of e property, the ~

ced:n!! ceases to be a s1mole enouqh mattr l1ke +l, e e~Pcution of

a money-decree and assumes the form of a contentious claim open to diverse defences as in a sutantive suit. The soeedv remedv intent). to. qe provided by Order XXI, Rule 71 will lose its meaning an4

SUPREM~ COURT REPORTS

[1975] 3 S.C.R.

purpose if the executing court seized of the claim agaist the alleged

detau!tmg purchaser has to embark upon a comparative evaluallo? of the causes that led to the deficiency in the pnce.

Suc.Q. me:at IS not for the executing court.

Counsel for the appellant relied on certain decisio~ to fasten liability on the auction purchaser but those decisions will not help.

In A1inavajhula Venkatachellamayya v.

Rama Girjee Milakanta Girjee(l), a purchaser in a court auc.tion of the judgment-debtor's right to get a re-conveyance of certain lands on payment of a specified sum was, on default in payment of the balance purchase mcmey,

held liable to pay the deficiency in price on re-sale under Order XXJ, RuLe 71, C.P.C., thougn the date stipulated for making the payment in order to get the rKonveyance happened to be sh.ortly after the 'court sale and before the expiry of the lS days within which

he ·•uction . purchaser could deposit the balance of the purc:llaso money.

Wallin CJ. observes in his judgment that the sale axuf, the l'c•sale were of the judgment-debto1's inte1est as it existed at the date of the sale •and the re-sale and that the depreciation which occurred . in he meantime wa~ one for which the auction purchaser was exclusively responsible.

In his concurring judgment Kumaraswami Sastriya•~ J. observeH that having regard to the fact that there is no warrant of title in a court auction, the maxim caveat emptor applies and therefore the purchaser cannot avoid the sale so Ion~ as the judgment-debtor has some saleable interest in! the property, howsoever small. The Ieame.d Judge further observes that the objections which a defaulting purchaser can urge are practically .confined to those .which can be urged in an application for setting aside

the sale under Order XXI. Relying on; these observations it is contended on behalf of the appellant that sine in the instant case the judgment-debtor had a saleable interest the auction purchaser cannot avoid his liability to make up the deficiency in price on the ground that the deficielllcy was caused by the disclosure of the encumbrance.

We are unable to appreciate the relevance of the maxim caveat emptor on a question like the one before us. The auction purchaser is not attempting' to avoid the sale.

Far from it. He adheres to his purchase but disputes his liability for the deficiency.

There is no question of any failure on his part to take due care at the time of the first sale because that sale was held in 1954 whereas the encumbrance referred to in the second proclamation was stated to have been created in 1955. . ' .

M_adho v. "':atsalubai(2), o~ which the appellant relies, was a <:ase m which the ex.tstence of a mamtenance charge and the right of reside.nce were om1tted to be mentioned in the sale proclamation. 'The Htg? C?ur~ a.t. Nagpur held that the auction purchaser could not avOid hts hab•hty to make good the deficiency in the sale price as the decee-ho1der in whose favour tlle charge was created bad reit<ra

ted aqam and arcai~ tb3t she was willing to waive the charJ!e. Hidavatullah J. who dectded the case further observes in his judgment that

. l) I. I .R. 41 Mad. 474.

(2) I.L.R. £1947] Nag. 939.

on a comparison of the two sale proclamations he found that the existence of the charge was not mentioned in either. Naturally, the deficiency in price could not be attributed to the existence of the charge.

In Nelluri Brahmaiah vs. Mohd. Sheik Mohiddin and Anr.,(1) the auction purchaser disputed his liability for the deficiency on the ground that the judgment debtor had no sateable interest in the property.

This contention was based on th~ circumstance that though the property was situated in Venkatapuram it was wrongly described as lying within the limits of Borrampalem. There was_ no dispute about the boundaries, about the survey number or the area and it was not sug~ gestcd that there was any other property of the particular description c jn Borrampalem. The High Court of Andra Pradesh held that in

these circumstan(:es the property could be ea~Hy identified, tat the location of tho property put to sale was known to everyone concerned

tmd therefore it was difficult to posit that the judgment-debtor had no

alcable interest in the property.

The decisions in Baijnath Sahai vs. Moheep Narain Singh ( ~) md in Gangadas Dayabhai vs. Bai Suraj( a), are more to the point. These cases arose under section 293 of the Code of 1882 corresponding to Order XXI, Rule 71, of the Code of 1908. In the Calcutta case, at the first sale no encumbrance upon the properties sold was notifid.

In the re-sale two encumbrances were notified. The econd sale was held because the auction purchaser had committed a default in paying

the balance of the purchase-price in the first sale. The price fetched in the second sale resulted in a deficiency for which the auctio:n purchaser was sought to be made liable.

Apart from the circumstance that the decree-holder was himself to blame for niot mentioning the encumbrances in the first proclamation and was therefore attempting to obtain an advantage of his own wrong, the Calcutta High Court expressed the legat position correctly by saying that "the re-sale contemplated by s. 293 of the Code of Civil Procedure must be a sale of the same property that was first sold, and under the same description, and any substantial difference of description at the sale and the

re-sale in any of the matters required to be specified by s. 287 to

eable intending purchaser~. to judg~ of the value of the property should disentitle the decree-holder to recover the deficiency of price under s. 293." In the Bombay Case the errors in the two proclamations were so confusing that the oeficiency in the price could oot, it .

was held~ be attributed to the default of the purchaser. The description in the second proclamation being materially different from that in the first, the re-sale was not of the same property and the auction purchaser, though he had defaulted in paying the balance of the purchase-price was absolved from making good the deficiency.

It was contended that Pashupati Nath Biswas, the auction purchaser, being in possession of a part of the property must be deemed

(1) [1964] (I) Andhra Law Times, 321.

(2) I. L. R. 16 Cal. 535.

(3) I. L. R. 36 Born. 329.

to have been aware of the lease and the sub-lease and therefore he is estopped from relying upon. the sai!le as having. led to the deficie.ncy in price. No estoppel can anse agamst the auct10n purchaser on e question whether the deficiency in price can be recovered . from lum.

The question which arises under Order XXI, Rule 7~ IS whether the deficiency can be attributed to the default of the auct10n purchaser or whether it c:an be reasonably attributed to any other supervening circumstance. This is not a case in which tht auction purchaser can be said to be taking advantage of his own wrong. He cannot therefore be estopped from contending tat the disclosure of the encum brance is the operative cause of the fall in price.

We may mention that the matter under consideration arose out of the Ordinary Original civil jurisdiction of the Calcutta High Court and therefore the Original Side Rule~ of the High Court would govern the matter. That will, however, net make any difference to our decision because Chapter XXV, Rule 7 of the Rules of 1914 provides by the Third clause for re-sale of the property in default of the payment of the p.rice by the purchaser within the stipulate'd time. The Third clause of Rule 7 provides : "Where the proceeds of the resale

arc less than the price bid by such defaulting purchaser, the diff<.rence shall be leviable from him under the rules contained in Order l ot the Code for the execution of a. decree for money.'' The Fifth clause of Rule 7 also pr01Jids that the sale is maqe under and subject to all other provisions contained in the Code of Civil Procedure relating to sales in exc!Cution of decrees.

Order XXI, Rule 71 of the Code would therefore apply.

It was finally contended on behalf of the appellant that the appeal filed by the auction purchaser from the judgment of the single Judge to the Division Bench of the High Court was barred by limitation.

We see no substance in this contention. The time requisite f.or obtaining certified copies undoubtedly means "the time properly required'' and all appellant cannot in the computation of the period of

limitation for filling the appeal ask for exclusion of time which was spent negligently.

But the facts and dates mentioned to us by the appellant's counsel show that the settlement of the draft decree was adjourned from time to time by an officer of the court on being property satisfied that there was good reason for adjournment. The auction purchaser cannot be blamed for the time thus spent in settling the draft of the decree under appeal. The argument must therefore fail. ·

For these reasons we confirm the jugments and dismiss these a~ peals with costs. Costs shall be in one set.

P.H.P.

Appeals dismissed.