RAJACHARYA SHESHACHARYA SHIRHATTI Vs. CHEMANNA GURUSHANTAPPA MAGAVI

JUDGEMENT

(1.) THE plaintiff-applicant applied under Order XXI, Rule 71 to recover the deficiency of price from a defaulting purchaser. His claim has been disallowed in two Courts. THE question arises whether a second appeal lies. THE claim is for Rs. 360. But for the provisions of Rule 71, a suit would have had to be filed for that amount. It would have been a Small Cause Court suit. But under the provisions of Rule 71 the decree-holder or the judgment-debtor can proceed in execution to recover the deficiency as if there had been a decree already passed for the payment of that amount. We think, therefore, that we must treat the application made by the plaintiff as one made in execution of a Small Cause Court decree, and there is no second appeal, from such an application. THEre is no reason why we should treat it as an application under Section 115 of the Civil Procedure Code. THE appeal is dismissed with costs.