RAM KALPA KUNDU Vs. KASI NATH DUTTA

JUDGEMENT

(1.) This is a second appeal by one of the decree-holders and it arises in the following circumstances. The appellant obtained a decree and in execution of it put certain property to sale. The sale was held on 31-10-1988. In the year 1945 the judgment-debtors made an application under O. 21, R. 90, Civil P. C. for setting aside the sale on the usual grounds. That application was imposed of upon compromise on 16-12-1945. By the terms of the compromise the judgment-debtors were to deposit either in Court or amicably with the knowledge of the Court the sum of Rs. 260 within the month of February 1946, the sum of Rs. 245 within the month of February 1947 and the sum of Rs. 245 within the month of February 1948 and also to deposit the sanja paddy and cash rent for the years 1353 and 1354 B. S. within the month of Chaitra of those years respectively. Upon this being done the sale would be set aside. The judgment-debtors were (to be ?) put in possession of the auction sold property as licensees until the solenama was carried out. There was a further clause that if the judgment-debtors failed to pay any of the kist money or failed to pay the sanja paddy and cash rent in terms of the provisions of the solenama, then the sale would stand good. There was a footnote to the solenama to this effect, namely, that if any money in respect of the three first mentioned kists which were payable under the solenama were paid and if the sale were not set aside the decree-holders would be entitled to withdraw the same and would not be liable to refund the money which would be forfeited. There is another provision in the footnote which need not be set out as it is not relevant for the purpose of this appeal. The judgment debtors paid the first of the two kists within time but failed to pay the sanja paddy and cash rent in time. Thereupon the decree-holders made an application purporting to be one under Section 47 Civil P. C., claiming that as the terms of the solenama had not been fulfilled there should be a declaration that the sale stands good. The judgment-debtors opposed this application and the only ground taken by them which is pressed before this Court is that time was not of the essence of the contract so far as the payment of the sanja paddy and cash rent is concerned and therefore the failure of the judgment-debtors to pay the sanja paddy and cash rent within time did not entitle the decree-holders to the relief prayed for.

(2.) Both the Courts below have held in favour of the judgment-debtors and have refused to grant the prayer of the decree-holders. Against this decision the present appeal has been filed by one of the decree-holders.

(3.) A preliminary objection is taken on behalf of the respondents that no second appeal lies. The argument was this : The application of the decree holders was virtually an application for confirming the sale made in accordance with the provisions of Order 21, Rule 92, Civil P. C. The Court has refused to confirm the sale. Against such an order of refusal an appeal lies in accordance with the provisions of Order 43 Rule 1 (j) of the Code. Section 104, Civil P. C., prohibits a second appeal from such an appellate order. It was argued that although the application was instituted as one being under Section 47 of the Code, it was really an application made under Order 21, Rule 92.