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Judgment
The question for decision in this case is whether an application for an order for sale under para. 4 of Section 93, Transfer of Property Act,
should be made to the Court of first instance or to the Appellate Court in a case where it was the Appellate Court that made a decree for
redemption u/s 92 of the Transfer of Property Act, modifying the decree of the Court of first instance. We have not been referred to any statutory
provision which lays down the procedure to be followed. The question, therefore, has to be decided with reference to principle and analogy. The
decree of the Appellate Court cannot be taken to be the decree which the Court of first instance should have passed if it had decided the case
correctly. Had the decree been duly passed by the Court of first instance, the application'' for an order u/s 93 would have been made to that
Court. The same course should, in our opinion, be followed when the Appellate Court passes the decree which ought to have been passed by the
Court of first instance. We are unable to accept the contention that when the Appellate Court passes a decree u/s 92 the suit should be regarded
as still pending in that Court until the order absolute u/s 93 has been passed.
The more reasonable view is that the proceedings in the Appellate Court have terminated with its decree u/s 92 and that any further order which
the parties require in order to give effect to the rights of the parties as settled by the decree should be obtained from the Court of first instance on
which would have devolved the duty of making such order if a correct decree had been passed in the first instance. This procedure is manifestly
more convenient than to throw the duty on the Appellate Court. It is also in accordance with the policy on which the rules in Sections 45 and 583,
Civil Procedure Code, proceed. Our conclusion is in accordance with what, we believe, has been the uniform practice of this Court ever since the
Transfer of Property Act came into force, and it is also in accordance with the view adopted by the Allahabad High Court, (Oudh Beharihal v.
Nageshar Nal,) though we do not wish to be understood as accepting all the reasoning on which that decision is based. The result is that the order
of the District Judge is right and we dismiss this appeal with costs.