NARAYAN Vs. GAJANAN

JUDGEMENT

(1.) 1. Certain immovable property was sold in execution of a decree and purchased by the decree-holder. The judgment-debtor applied under Order 21, Rule 90, Civil P. C., to have the sale set aside on the ground that there had been a material irregularity in publishing and conducting it. The first Court dismissed the application under Rule 92 and the lower appellate Court dismissed the judgment-debtor's appeal. The respondent has taken the objection that no second appeal lies.

(2.) THE respondent relies upon the decision in Gulam Ahmad v. Kanhaiyalal, A.I.R. 1930 Nag. 58, and the appellant relies on a contrary view taken in Madanlal v. Bipusudanprasad, A.I.R. 1930 Nag. 191. In the latter case Subhedar, A. J. C., stated that there were conflicting decisions on the point, and he preferred the view expressed by the Calcutta High Court in Kailash v. Gopal AIR 1926 Cal 798 to that expressed by the Madras High Court in Rajagopala v. Ramanujachariar AIR 1924 Mad 431. In the Madras case Schwabe, C.J., conceded that no second appeal would lie against an order under Order 21, Rule 92, though that was not the precise point before the Court, and in the Calcutta case a majority of the Judges held that an order under Rule 95, Order 21, was an order under Section 47, and that a second appeal therefore lay. The latter decision may clearly be distinguished on the ground that it was dealing with an appeal under Rule 95 and not under Rule 92, and it has so been distinguished by Mukerji and Roy, JJ., in Satyandra Nath v. Charu Chandra . In my opinion the wording of the Code leaves no doubt that a second appeal does not lie under Order 43, Rule 1(j). An order under Rule 92, Order 21, lies under the provisions of Section 104, and under Section 104 (2) no appeal lies from any order passed in appeal under this section. In Mahadeo Singh v. Dhobi Singh AIR 1924 Pat 111 Mullick, J., treated the point as so clear that argument was unnecessary, and Bucknill, J., agreed with him. A similar view was taken in Jaggan Nath v. Daud AIR 1923 Lah 592, Ramiah v. Athmanatha Aiyar, A.I.R. 1929 Mad. 624, and Jagdeo v. Ujivari, . For these reasons I hold that no second appeal lies. The appeal is accordingly dismissed with costs. Pleader's fee Rs. 15.