V V NARAYANA MURTHY Vs. C RADHAKRISHNA GUPTA

JUDGEMENT

(1.) This matter has come up again before us and the question once again to be resolved is whether L.P.A. lies.

(2.) The appellant is no other than the judgment-debtor. The plaintiff laid the suit on a mortgage deed and obtained a decree. The property involved is a small residential site in Tirupathi town. An execution petition was filed and the house was brought to sale. The plaintiff, that is, the decreeholder is no other tluni the auction purchaser. Since, then the trouble started. When E.P. was filed, the judgment-debtor, at the time of confirmation, took several objections including the fact that the value given by the Amin was low, so on and so forth. The trial Judge went into that question and by his order dated 30-1-87 dismissed the E.A. As against that, C.M.A. 161/87 was filed and that was also dismissed by the learned single Judge. Aggrieved by the said order, L.P.A. 14/88 was filed in this Court and a Division Bench of this Court dismissed the L.P.A. upholding the preliminary objection that it is not maintainable. But, we have held that a combined reading of the provisions leads to the conclusion that an appeal lies under Order 43 Rule (1)(j) read with Section 104 CPC against an order, under Rule 72 or Rule 92 of Order XXI C.P.C. Sub-section (2) of Section 104 C.P.C., however, lays down tha no appeal lies against any order passed "in appeal" under that section. The C.M.A.161/87 in the instant case is one such appeal and against an order passed in that appeal therefore further appeal does not lie. Consequently, L.P.A. is barred. In coming to this conclusion; we have also referred to Shah Babulal Khimj vs. Jayaben and also the judgment of this Court in Amruthappa vs. Abdul Rassoiz. We have however, observed that if really, the judgment-debtor is aggrieved because of the irregularities committed during the sale notice and the auction proceedings, he may, at the most request, the learned single Judge to review the order as the contention was that the learned single Judge has not adverted to this aspect. With this observation; we disposed of the L.P.A. 14/88. After that, a review petition was filed and the learned single Judge has dismissed the same. Against the said order, the judgment-debtor has filed the present L.P.A. Though the learned counsel advanced somewhat lengthy arguments regarding the meaning to be given to the judgment under appeal and in the context of examining the scope of L.P.A. the matter does not present any difficulty. Once it is held that L.P.A. does not lie against an order passed in C.M.A. 161/87, it is needless to say that the order passed in a review petition of such an order cannot improve the situation. Therefore the L.P.A. does not lie at all against an order passed in review petition when L.P.A. does not lie against a main order itself which was sought to be reviewed.

(3.) In the result L.P.A. is dismissed.