BISSONATH RAI Vs. KAMALESHWARI PRASAD SINGH

JUDGEMENT

(1.) This appeal arises out of an application to set aside a sale under Order XXI, Rule 90 of the Code of Civil Procedure. The application was dismissed. An appeal lay and was taken against this order to the District Judge. Section 104 provides in Clause (i) for an appeal from Orders made under Rules from which an appeal is expressly allowed by Rules; and under Order XLIII, Clause (j), an appeal is given against an order setting aside, or refusing to set aside a sale under Rule 92 of Order XXI. Then Section 104, Clause 2, provides that no appeal shall lie from any order passed in appeal under this section; and a preliminary objection has accordingly been taken, that no appeal lies to this Court.

(2.) It has been admitted, on the other hand, that if the case came within the scope of Order XXI, Rule 90, the argument would be well-founded, but it is contended that as there was an allegation of fraud, the case is one under Section 47 and that a second appeal., therefore, lay. But this argument is clearly negatived by the terms of Order XXI, Rule 90, for the law has been materially changed. The previous Section 311, which is re-placed, by Rule 90, made no provision for the case of fraud; and under the provisions of the old Code, it was held that Section 311, which applies to cases of mere irregularity, did not apply where the sale was sought to be set aside On another ground, such as fraud. It was under that Code held that where fraud in the execution proceedings was alleged, the question arose between the parties and an application lay under Section 244 (now Section 47); and under that Code, as under the present one, an order passed under that section is a decree and a second appeal lies. The reason why a second appeal was held to lie was that as fraud was not included within the old Section 311, the case of fraud was attracted to the general provisions of Section 244, in which case there was a second appeal.

(3.) In my opinion, the result of the amendment is to place the procedure in the case of the setting aside of sales on the same footing, whether the application to set aside such sale is based on the ground of irregularity or on the ground of fraud. We must, therefore, hold that the preliminary objection succeeds and that there is no second appeal to this Court and we dismiss this appeal with costs, two gold mohurs. Carnduff, J.