SUBRAMONIA IYER Vs. DAMODARAN POTTI

JUDGEMENT

(1.) This is an appeal by the 7th plaintiff, the assignee decree holder. Five acres and 51 cents of land were sold in auction in execution of the decree in O. S. 13 of 1098 of the Haripad Munsiff's Court. The property was purchased in auction by the decree holder himself, on 12-6-1112. The sale was confirmed on 17-7-1118. The appellant thereafter got a transfer of the right of the auction purchaser and got delivery of the property. The delivery took place on 13-8-1118. An application to set aside the sale had been filed by the 4th defendant in this case and that was allowed on condition of the 4th defendant depositing the balance of the decree amount. The final order passed by the High Court in A. S. 617/1118 would indicate that that was more or less a consent order. It was provided in that order that if the 4th defendant would deposit the balance of the decree amount the sale would be set aside and possession given to the 4th defendant. In pursuance to that order the 4th defendant deposited the amount on 31-12-1119 and he got redelivery of the property on 11-1-1120. Thereafter the 4th defendant moved an application to recover the mesne profits from the property from 13-3-1118 to 11-1-1120 on the ground that the auction purchaser would be getting an undue advantage if he was allowed to retain the profit of the property during the period he was in possession of the same. That application was dismissed by the court of first instance. The 4th defendant filed an appeal before the District Court. Court allowed the appeal. It is against this order that the appeal has been filed.

(2.) The 4th defendant's application before the court was put in under S.144 CPC., for restitution, but the Trial Court found that that section was not attracted to the facts of the case and treated the application as one under

(3.) A different view seems to have been taken in AIR 1931 Calcutta 779 and AIR 1948 Calcutta 37. The reasoning in AIR 1950 Mad. 463 if I may so with respect, appeals to me as correct. I therefore follow that decision and hold that the appeal to the lower appellate court was incompetent and therefore the lower appellate court had no jurisdiction to set aside the order passed by the court of first instance. As the question in this case concerns a matter arising after the delivery of the property in execution of the decree, I do not think that it relates to execution, discharge or satisfaction of the decree so as to fall within the ambit of S.47 of CPC. Hence the question of the appeal ability has to be decided on the basis that the application was one under S.151 alone. Though no second appeal would lie in this case I treat this appeal as a revision, as the lower appellate court has exercised a jurisdiction not vested in it by law. I come to the conclusion that the order passed by the lower appellate court was passed on an appeal which was incompetent in law. I therefore set aside that order and restore the order passed by the Trial Court.