PISUPATI LAKSHMINARAYANA Vs. CHILLA VENKATESWARLU AND OTHERS

JUDGEMENT

(1.) The principal contention urged in this Civil Miscellaneous Second appeal which arises out of E.A. 544/59 filed under Ss. 144 and 151 Civil Procedure Code for recovery, by way of restitution, of the amount paid for the purchase of a property, in which the judgment-debtors were ultimately found to have had no saleable interest, in a court sale, is that the decision of the court below is vitiated as the learned Subordinate Judge failed to note that the only remedy if any, of the respondent 1 to 4, who are the successors in interest of the auction purchaser, was to have had recourse to rules 91 and 93 of Or. XXI CPC and not under Ss. 144 or 151 and that in any view, the Court below acted in contravention of principles of law and equity in directing the appellant herein, who is the decree-holder, instead of the judgment-debtors, to make restitution.

(2.) Besides supporting the judgment of the lower appellate Court, learned counsel for the respondents raised a preliminary objection against the maintainability itself of the appeal on the strength of the provisions contained in Section 102 CPC.

(3.) I shall first deal with the preliminary objection raised against the maintainability of the appeal. This objection, as already stated is based on the provisions of Section 102 CPC which lays down that no second appeal shall lie in any suit of the nature cognizable by Courts of small causes, when the amount or value of the subject-matter of the suit does no exceed one thousand rupees. It is common ground that the decree, the execution of which the property was sold and purchased by Sambaiah, the predecessor-in-interest of the contesting respondents, was made in a small-cause suit and it is also not in dispute that the amount for recovery of which that suit S.C. 561/38 was filed, is less than Rs. 1,000/-. It is true that Section 102 refers to "suit" but it is now well-established that this expression "suit" includes execution proceedings also. Suffice to refer in this context to Sant Prasad v. Bhawani Prasad and another, AIR 1921 Allahabad 55 in which it was held that "a second appeal will not lie in an execution matter, if a second appeal would not have lain in the suit itself". It, therefore, follows that no second appeal will lie even from an order made in execution of a decree passed in a suit of the nature cognizable by a small Cause Court unless the value of the suit exceed Rs. 1,000/-. The fact that the decree made in SC 561/38 was transferred to the original side for the purpose of taking out execution against immovable property makes no difference so far as the applicability of Section 102 is concerned as it is the nature and value of the suit in which the decree sought to be executed was made and not the nature of the proceedings in execution that would determine the applicability or otherwise of section 102 CPC.