BHONDU SAO RAMDAS Vs. DOMA SAO

JUDGEMENT

(1.) The decree-holder has filed this miscellaneous second appeal against the order of the Additional Subordinate Judge, VIth Court, at Patna, dated 21-8-1958 passed in Miscellaneous Appeal No. 16/12 of 1958. I must observe at the outset that this is a very peculiar order I have come across passed by an appellate Court in this fashion. The decree-holder-appellant had a money decree against the respondents, including respondent No. 1 who was judgment-debtor No. 1 and they had objected to the execution of the decree on several stages. Ultimately all their objections failed. The property was sold in execution of the decree on 17-9-1955 and the sale was confirmed on 17-11-1955. When the decree-holder proceeded to have delivery of possession over the properties sold, an application was filed by respondent No. 1 labelling it under Sections 47 and 151 of the Code of Civil Procedure. This application was filed on 13-6-1957. The only ground taken in this application is that holding Nos. 8 and 50 are amalgamated together and the only holding which has been sold to the decree-holder is holding No. 8, but he wants to take delivery of possession over holding No. 50 because of the wrong and incorrect description of the boundaries. It was stated in the fourth paragraph that in view of this wrong description of the boundaries holding No. 8 ought not to have been sold at all and further that no order for delivery of possession can at all be passed in respect of any property. Curiously enough, a threat was also given in this petition in the fifth paragraph :

(2.) The learned Subordinate Judge in the beginning of his judgment, after stating the objection taken by the first respondent in the executing Court, started by saying :

(3.) When the point was taken before the learned Subordinate Judge that such an application giving rise to this appeal was not maintainable under Section 47 of the Code of Civil Procedure, he has curiously met this argument by observing that if an illegality has been committed in conducting the sale, then the sale becomes without jurisdiction and the court has inherent powers to set aside a sale which was got held by committing fraud. I could not follow this reasoning of the learned Additional Subordinate Judge. There was no application in the executing court asking it to recall any of its previous orders on the ground of any illegality or fraud. This I am saying apart from the question that no appeal would lie even against such an order of the first court refusing to recall its previous order. Be that as it may, after making all these Irrelevant observations and giving his findings on the points which did not arise at all, the learned Additional Subordinate Judge ultimately has simply set aside the order of the executing court refusing the application of the first respondent for not issuing the delivery of possession. In my opinion, in view of the Full Bench decision of this court in Tribeni Prasad Singh v. Ramasray Prasad, AIR 1931 Pat 241, no appeal lay to the court below and his order setting aside the order of the executing court-is absolutely without jurisdiction. It is well settled that if an appeal has been entertained by the court below wrongly, a second appeal to this Court is competent, and I can set aside the order of the lower appellate court in this second appeal.