KARAMSETTI GURAVAIAH Vs. VRANGIAH, OFFICIAL RECEIVER

JUDGEMENT

(1.) This is an appeal under -the Letters Patent from a decision of King, J., dismissing an appeal which the appellant had filed challenging the correctness of an order passed by the District Judge of Nellore. The respondent, who is the Official Receiver of Nellore, says that no appeal lay to this Court from the order of the District Judge and this question has been argued first.

(2.) On the 15 January, 1935, the appellant obtained a final decree for sale in a suit which he had filed against the second respondent to enforce a mortgage. In the mon August, in. that year the second respondent was adjudicated an insolvent. The appellant, who says he had no knowledge of the adjudication proceeded to execute his decree, and on the 17 August, 1936, the property was sold by the Court. The appellant was the purchaser. On the 16 September, 1936, the first respondent filed an application under Order 21, Rule 90, Civil Procedure Code, in which he asked for an order setting aside the sale on the ground that he had received no notice of it and also because the sale had resulted in substantial loss to him as the representative of the estate of the judgment- debtor. The execution proceedings, had taken place in the Court of the District Munsif of Kanigiri and consequently the first respondent's application was made in that Court. The District Munsif held that the Official Receiver was not a necessary party to the proceedings and that there had been no substantial injury caused by the sale. The first respondent appealed to the District Judge, who reversed both the findings of the District Munsif.

(3.) The first respondent says that no appeal lies from the decision, of the District Judge by reason of Sub-section (2) of Section 104, Civil Procedure Code, the appeal to him being from an order which fell within Order 43, Rule 1 (j). The questions between the appellant and the first respondent were, however, questions which also fell within the purview of Section 47 of the Code. There was the decree-holder on the one side and the Official Receiver, representing the judgment-debtor, on the other. In these circumstances the appellant claims the right of a second appeal. That a second appeal does arise in such circumstances was recognised by a Bench of this Court in Anantharama Aiyar V/s. Kuttimalu Kovilamma , and a similar decision has been given by the Calcutta High Court-- See Dineshchandra Ray Chauduri V/s. Jahanali Biswas (1934) I.L.R. 62 Cal. 457. The judgment in Anantharama Aiyar V/s. Kuttimalu Kovilamma , is binding on us and decides against him the preliminary objection taken by the first respondent.