MOHAMMAD ISMAIL ROWTHAR Vs. VELAYUDHAN

JUDGEMENT

(1.) Decree holder is the appellant. In execution of the decree for arrears of rent, he purchased the judgment debtor's right in court sale on February 11, 1957. The judgment debtor preferred a petition on March 9, 1957, under O.21 R.90 CPC. to set aside the sale. It was dismissed by the Subordinate Judge, Palghat, on July 31, 1961, who then adjourned the case four times for confirmation of the sale, and ultimately confirmed it by an order dated September 30, 1961. Against the latter order, the judgment debtor preferred an appeal before the District Judge, who reversed the same. This second appeal is against the last mentioned order.

(2.) Counsel for the appellant contends that the appeal in the court below against an order confirming a court sale was incompetent. Counsel for the respondent argues that the order confirming a sale, though not appealable under O.43 CPC., is appealable under S.47 CPC. as an order relating to execution, discharge or satisfaction of the decree.

(3.) Under O.21 R.92 when a petition under O.21 R.90 is disallowed, "the Court shall make an order confirming the sale". The controversy between the parties in regard to the validity of the sale arises in the motion under O.21 R.90 that challenges it directly; and when that has been disposed of against the petitioner, the Court has nothing further to adjudge, and the order of confirmation of sale is a matter of course. Unless an order in itself determines some right of the parties in controversy it cannot be deemed a 'decree' even if it relates to execution, discharge or satisfaction of the decree in a case. Under O.43 R.1(j) an appeal is provided against an order refusing a petition under O.21 R.90, but not from the order confirming a sale. Such has been the view taken by the Calcutta High Court in Guru Charan v. Mahendra Chandra 43 C. W. N. 352 with which we are in respectful agreement. It must follow that the appeal preferred by the respondent in the court below was incompetent, wherefore the order made thereon by the District Judge was without jurisdiction. The second appeal has to be allowed and the decision of the District Judge under appeal herein vacated. Judgment accordingly. No costs.