AKSHIA PILLAI Vs. GOVINDARAJULU CHETTI

JUDGEMENT

(1.) Appeal against an appellate order setting aside a Court sale.

(2.) The Principal District Munsif of Chingleput in C.M.P. No. 453 of 1920 dismissed the application of the present respondents under Order 21, Rule 90, holding that there was no evidence of fraud or irregularity. On appeal the District Judge found that the judgment-debtors had no cause for complaint on the score that lots 1 and 2 were sold for a low price, nor were they adversely affected as regards the remaining lot 3. There was therefore no substantial injury. He records no finding as to fraud apparently agreeing with the lower Court that there was no proof. He thus practically confirms the order under Order 21, Rule 90. But in his sixth paragraph he finds that the lower Court's orders on M.P. No. 230 of 1917 were not brought to the notice of the Court which directed the sale and inasmuch as the sale was in contravention of the orders under M.P. No. 230 of 1917, which were final, the sale must be set aside. This is to break fresh ground. The judgment- debtors cited the failure to bring the previous petition to the lower Court's notice as evidence of plaintiff's fraud - Affidavit in M.P. No. 453 of 1920, paragraph 6. But the District Judge does not find that there was fraud; he merely finds that the sale was in contravention of the orders under M.P. No. 230 of 1917. There is no objection to the Judge when the sale was before him upon appeal considering its validity from every point of view of. Palaniappa Udayan V/s. Arumuga Pandaram (1916) 1 MWN 256 : 33 IC 692. and exercising his inherent jurisdiction. The ruling that a Court must confine itself to Section 311 of the old Code, Harbans Lal v. Kundan Lal (1898) ILR 21 A 140. was before anything like Section 151 was embodied in the statute. And if the Judge decides to set the sale aside not on the ground of material irregularity occasioning substantial injury, but merely on the ground that an order has been violated, he cannot be said to be acting under Order 21, Rule 90. He must be acting under his inherent powers. That being so an appeal will lie to this Court, although no second appeal lies from an order under Order 21, Rule 90, Asimaddi Sheik V/s. Sundari Bibi (1911) ILR 38 C 339. The action of the District Judge is very similar to that discussed at page 610 by Tyabji, J., in Muthia Chettiar V/s. Bava Saheb . Oldfield, J., in the same case page 606 quotes the appellant as urging that remedies lie alternatively under Order 21, Rule 90, or Section 47. This argues some confusion. If the parties disputing the sale are parties to the suit they approach the Court under Section 47, which decides the forum. The Court then proceeds according to its statutory powers. It may exercise its inherent jurisdiction under Section 151, or it may exercise its power under Order 21, Rule 90. These are really the alternative provisions and this is presumably what is meant in Palaniappa Udayar V/s. Arumuga Pandaram (1916) 1 MWN 256 : 33 IC 692. " Order 21, Rule 90, must be read with Section 47, Civil Procedure Code," etc. Again in Anantaramier V/s. Kuttimalu Kovilamma . "one must presume at the outset that Section 47 always applies." If it is coupled with Order 21, Rule 90, no second appeal lies. That is to say there is no second appeal when a Court approached under Section 47 acts under Order 21, Rule 90. But when it is so approached and exercises its inherent power under Section 151 there is a second appeal. In Sheik Maula Bux V/s. Raghubar Ganjhu (1918) 3 Pat LJ 645 it has been held that if a Court professing to act under Section 47 sets aside a sale there can be no second appeal because Order 43 gives a right of appeal against all orders setting aside sales. But Order 43 is hardly so comprehensive. It gives a right of appeal against orders under Rule 72, or 92 of Order 21, but not in cases where the Court is acting under Secs.151 and 47. This finding that an appeal lies practically disposes of respondent's case for the order of the Lower Appellate Court is based on an entire misapprehension of facts. Even if as alleged in para. 6 of their affidavit in M.P. No. 453 of 1920 the plaintiff and the 7 defendant got an order that the 3 lot was to be sold last, without bringing the order on M.P. No. 230 of 1917 to the notice of the Court, nevertheless as shown in para. 7, the respondents heard of the fraud and brought the order to the Court's notice. The Court then considered the whole question with everything before it and ordered on nth August, 1920, that the 3 and not the 2nd lot should be sold last--Order on M.P. No. 402 of 1920. This was the order followed at the sale. (Para. 8 of the affidavit and sale list.) Therefore there was no violation of a final order as the learned District Judge was led to suppose.

(3.) In the circumstances these appeals are allowed with costs throughout. Vakils fees one set. The order of the District Munsif on C.M.P. No. 453 of 1920, dated 30 October, 1920 is restored.