MOHAN LAL MAHTO Vs. SHIBDHARI CHAUBE

JUDGEMENT

(1.) Miscellaneous Appeal No. 10 of 1941, is an appeal from an order of the learned District Judge of Purnea made in an appeal preferred to him from a decision passed under Section 47, Civil P.C. Civil Revn. No. 31 of 1941 has been filed in case this Court holds that no second appeal lies. For the respondents a preliminary point was taken that no appeal lies; but before discussing that point, it will be necessary to set out the facts which give rise to this litigation. On 26th February 1938, the appellant obtained a mortgage decree against the respondents, and on 3 December 1938, that decree was made final. On 26th March 1939, the present respondents made an application to the learned Munsif under Order 9, Rule 13, Civil P.C., praying that the decree which was ex parte against them should be set aside. On 25 July 1939, this application was dismissed and on 25 August 1939 the present respondents preferred an appeal to the Court of the District Judge against the order of the learned Munsif dismissing their application. In the meantime proceedings to execute the mortgage decree were proceeding, and the sale o? the mortgaged property had been fixed to take place on 2 October, 1989. On 28 September 1939, the present respondents applied to the learned District Judge to stay the sale of the property which was to take place in execution of the decree] and on 30th September 1939, the learned District Judge, in the absence of the appellant, made an interim stay order. In the ordinary course that stay order would have been communicated to the learned Munsif before the sale was due to take place. Owing to some error, the nature of which is not clear, the order did not reach the Court of the learned Munsif until 5 October 1939, and in the meantime the property as advertised had been sold on 2 October, 1939. It appears that no objection was taken by the present respondents, and on 2l November, 1939, the sale was confirmed. Shortly afterwards in December 1939, the delivery of possession was given to the appellant.

(2.) On 17 January 1940, the respondents filed the present application in the Court of the Munsif praying that the sale which had taken place in execution of the decree should be set aside. It is to be observed here that the appeal against the order of the learned Munsif refusing to set aside the decree under Order 9, Rule 13, Civil P.C., was eventually dismissed by the District Court. The application of 17 January 1940, purports to be made under Secs.47 and 151, Civil P.C., and the prayer is that the sale should be set aside. It is mentioned that an appeal was pending against the Munsif's decision in the proceedings under Order 9, Rule 13, Civil P.C., and that the learned District Judge had stayed the sale. It is then said that the sale took place in error and that the applicants have suffered serious loss. There can be no doubt that this was intended as an application under Section 47, Civil P.C., and appears to have been so regarded by the trial Court. The learned Munsif dismissed the application, but on appeal the learned District Judge reversed the decision, holding that as the sale had been stayed by an order of the District Judge the sale which actually took place on 2 October, 1939, was a sale wholly without jurisdiction and was null and void. Accordingly he passed an order setting aside the sale as prayed for by the present respondents.

(3.) As I have stated, the respondents have taken a preliminary objection that no appeal lies in this case. It is urged on their behalf that their application was an application under Order 21, Rule 90, Civil P.C., and if that were so, no appeal would lie to this Court from the order of the learned District Judge. It is, however, clear from the terms of the application that what is complained of is not irregularity or illegality in the publication or conduct of the sale but rather that the sale was conducted wholly without jurisdiction; in short, that the sale took place when the Court of the Munsif was prohibited from selling. As I have stated, the application in terms purports to be made under Section 47, Civil P.C., but it is true that applicants should not be tied down to the heading which they give in an application. Here, however, the terms of the application Make it clear that it was not an application under Order 21, Rule 90, Civil P.C., and was an application which could only have been dealt with under the provisions of Section 47, Civil P.C. The learned District Judge treated the appeal to him as an appeal against an order passed under Section 47, Civil P.C., and in my view it was an order passed under that section, and that being so, a second appeal lies to this Court.