Patna High Court
Sheikh Maula Bux vs Raghubar Ganjhu on 3 July, 1918
Equivalent citations: 48IND. CAS.560, AIR 1918 PATNA 297
JUDGMENT Mullick, J.
1. The plaintiff got a decree against the defendant for money and the execution with which we are concerned was one which was lodged on the 8th February 1915. In pursuance of that execution petition the plaintiff attached some immoveable property belonging to the judgment-debtor, the sale being fixed for the 15th May 1915. The judgment-debtor paid Rs. 40 and got the time for the sale extended till the 15th June, promising not to take any further objection to the regularity of the sale proclamation. On the 15th June the judgment-debtor did not appear and the property was duly sold and purchased by the decree-holder for Rs. 412, which represented the balance due on the decree. The sale was confirmed and delivery of possession was made on the 29th July 1915. In August 1915 the judgment-debtor filed, an application before the execution Court alleging that after the 15th May the decree-holder agreed not to proceed, with the sale on a promise by the judgment-debtor to pay up the whole of the decretal money within two months. The judgment-debtor alleged that by this fraud on the part of the decree holder he was kept out of all knowledge of the sale till the 29th July. The execution Court as well as the District Judge on appeal have held that the story told by the judgment debtor is true and that there was fraud on the part of the decree-holder, and the sale has, therefore, been set aside. The present second appeal is filed by the decree-holder against the order setting aside the sale.
2. Now it is clear that a second appeal will not lie if there is no point of law -involved. Upon the appellate judgment of the learned District Judge it is not clear that there is any point of law which requires our interference. The learned Judge has disposed of the case upon the merits and has found as a fact that there was fraud on the part of the decree holder. The learned Vakil who appears for the appellant before us, however, urges that as the execution case was finally concluded with the delivery of possession, it cannot be said that there was any execution proceeding in the course of which the judgment-debtor was competent to make an objection under Section 47 of the Civil Procedure Code. He says that the order made by the execution Court was an order under Section 47 and that it was a decree and that, therefore, a second appeal lies. It is quite clear that' the order of the execution Court was not a decree, having regard to the definition of decree in the Civil Procedure Code (section 2). As the law now stands, it would appear that it is not open to a party to impeach a sale under Section 47 of the Civil Procedure Code and that, in any event, if a Court does, professing to act under Section 47, set aside a sale on the objection of the judgment-debtor in a proceeding between the judgment debtor and the decree-holder, that order will not be a decree. Order XLIII of the Code now gives a right of appeal against all orders setting aside sales on the ground of irregularity or fraud in the matter of publishing or conducting a sale and, therefore, an order purporting to have been passed under Section 47, setting aside a' sale, would not be a decree within the meaning of Section 2, because under Order XLIII it has been made specially appealable otherwise than as a decree. Therefore the order, if made under Section 47, not being a decree, no second appeal will lie.
3. The learned Vakil then falls back upon another contention, namely, that Order XXI, Rule 90, which gives a Court power to set aside sales on the ground of fraud in publishing and conducting the sale, does not include cases where fraud has been committed after the publication of the sale proclamation. He contends that to obtain relief for such a fraud the judgment-debtor must bring a separate suit. In my opinion the language of Order XXI, Rule 90, is sufficiently wide to cover fraud such as has been found in the present case. Here the decree-holder promised not to hold the sale if payment was made within a certain time, bat he then fraudulently proceeded to sell the property in contravention of the arrangement made with the judgment-debtor. This would, in my opinion, be fraud in the matter of conducting the sale. Therefore the proper provision of the Civil Procedure Code under which the judgment-debtor could come and impeach the sale was Order XXI, Rule 90, and against an order under that section there is only one appeal allowed by Order XLIII. A second appeal does not, therefore, lie. The result is that the appeal is dismissed with costs.