DHIR SINGH Vs. PEER BUX AND ANOTHER

JUDGEMENT

(1.) THIS is a second appeal from a proceeding to set aside a sale under O.XXI, R.90 of the Civil P.C. Several grounds were raised in support of the application but they did not find favour with the executing court which dismissed it with costs. An appeal lies from the refusal to set aside the sale which was the main subject-matter of appeal before the District Court which was heard and allowed by the Court of the Civil Judge, Bijnor by order dated July 31, 1968. The learned Civil Judge held that there had been material violation of the mandatory rules in as much as the sale of the land had been effected without prior attachment of the property. This ground was not raised at any time before the sale. On the other hand, the judgement-debtor had expressly stated that the land could be sold even without a sale proclamation in exchange for some other land which had been attached and proclaimed to be sold by the court. The judgement-debtor herself invited the sale of the property and there was no question of any material injury being caused to her by the sale having been effected without prior attachment. However, since in the opinion of the learned Civil Judge the sale violated the mandatory procedure prescribed by law, he set it aside. The decree-holder has appealed in this Court.

(2.) NOW a second appeal does not lie from an order passed on appeal under S.104 read with O.XLIII of the Civil P.C. Nevertheless, this Court has jurisdiction to revise the order under S.115 of the Civil P.C.