KATORI KUNJRA Vs. AJUDHIA PRASAD

JUDGEMENT

(1.) THIS is an application for revision on the ground that the Court below had no jurisdiction to entertain an appeal from the order of the Court of first instance. What happened in this case was this. A house was sold by auction in execution of a decree and was purchased by the present applicant. He deposited one-fourth of the purchase-money as required by Order XXI, Civil Procedure code, but he did not deposit the balance within the fortnight allowed. He, however, made an application to the Court, asking it to set aside the sale on the ground that the property was subject to encumbrances and he had been misled by the omission of encumbrances in the proclamation of sale into purchasing the property. THIS application was not justified by any of the provisions of the Civil Procedure code. The Court, however, set aside the sale and ordered the property to be re-sold. THIS order it was justified in making by the provisions of Order XXI, Rule 84. Against this order the decree holder appealed to the lower Appellate Court, That Court entertained the appeal under Order XLIII, Rule 1, Clause (j). The learned Judge in entertaining the appeal clearly committed an error, because the sale had not been set aside under Rule 92 of Order XXI. The lower Appellate Court, therefore, acted without jurisdiction in sending back the case to the Court of first instance and awarding costs to the decree-holder against the present applicant. The order of the Munsif was a right order because it was the duty of the Munsif upon non-payment of the balance of the purchase-money to direct a re sale and this is what the Munsif had directed. I am informed that the successor of the Munsif who made the first order has repeated the order for re-sale after the remand by the District Judge. The property baa been re sold and has been purchased by some one else. The applicant has thus gained his object and this application only raises an academic question. However, as the order of the Court below was without jurisdiction, I must allow the application and set aside that order including the order directing the applicant to pay the costs of the decree- holder in the Court of first instance and in the lower Appellate Court. As to the costs of the application in this Court, I direct that each party do abide his own costs. The parties will pay their own costs in the Courts below.