NASIRUDDIN HAIDER Vs. HAKIM MUHAMMAD TAHIR

JUDGEMENT

(1.) In this appeal the respondent was the person who in the execution sale of a holding made an application to be allowed to deposit the auction money and prayed that the sale be set aside. What actually was done was that he took out a chalan, did not in fact deposit the money, but applied to the executing Court to be allowed to deposit the money. The question which was decided by the Court before which that application came was whether the respondent had an interest in the property within the meaning of Order 21, Rule 89, Civil P.C. and the learned Judge came to the conclusion that the respondent had no interest of that nature. The only interest, to use the expression in a neutral sense, that the respondent had was that he got a contract for sale, from one of the tenants, of this property who eventually obtained a decree for specific performance; but at the time that he had applied to make the deposit, no conveyance had been executed in his favour.

(2.) Having failed before the executing Court he appealed to the District Judge where the decision of the first Court was reversed on the point that he had ah interest which would entitle him to deposit the money under Order 21, Rule 89, Civil P.C. A third person who was the purchaser in the auction sale is the appellant before me and he appeals against the order of the District Judge allowing the respondent to deposit the money and setting aside the execution sale. The first point taken by way of preliminary objection is that no appeal lies. The relevant provisions of the Code with regard to that matter are contained in Order 43, Rule 1 so far as regards the appeal to the District Judge. It is clear that so far as that matter is concerned there was an appeal. But I think it is equally clear, and Mr. Jayaswal appearing on behalf of the appellant does not seriously contend that the argument that there is no appeal to this Court is erroneous. But I am asked to deal with the matter under my revisional jurisdiction. The answer to that by the respondent is that an application was made before one of the learned Judges of this Court to revise the order of the District Judge, the application for a rule being rejected on the ground that there was a second appeal, and therefore no application can now be made after the decision on the former occasion. That argument in my judgment is not well-founded for the simple reason that an application for a rule and its rejection does not make the matter res judicata and does not prevent a Court on a subsequent occasion, if the occasion arises, from granting a rule in the interests of justice. Therefore, so far as the preliminary point is concerned, it partly succeeds and partly fails. I said a moment ago that there was no serious contest by Mr. Jayaswal that no second appeal lay. There is some authority however for the proposition that in the event of a District Judge entertaining an appeal without jurisdiction a second appeal would lie to this Court.

(3.) Reference is made to the decision in Ramratan Prasad V/s. Banarsi Lal 1950 Pat 280 as an authority for the proposition. Fazal Ali, J., deciding the case, has stated that there are authorities which establish that proposition. But I must confess that the authorities upon which the learned Judge relies certainly do not meet the point with which I have to deal: in other words, that although by statute no appeal lay the circumstances surrounding the case will in any way affect the statute. I have very little hesitation in coming to the conclusion in this case that no appeal lay both on the grounds stated in the decision referred to and on the ground which Mr. Jayaswal advances before me. I cannot for a moment think that a wrong decision, even though it relates to jurisdiction, would give a right of appeal where otherwise no appeal lay. But in this case, even assuming that proposition to be well-founded, that is to say, there is a second appeal to this Court, it would in this case depend upon a number of facts and the construction of Order 21, Rule 89 which, to say the least of it, is a highly technical one. What happened was that the person seeking to deposit the money took out a chalan for the amount to be deposited, and, without actually depositing it in Court, applied to the Judge to allow him to make the deposit, and in his petition claimed to have the sale set aside. Now the learned Judge refused the application and I think it will be taking a very technical view of the Civil Procedure Code and indeed straining the language of the statute to suggest that he had not done what was required of him, that is to say, the applicant, and that the effect of the order of the Judge was not an order refusing to set aside the sale. To put it more precisely Mr. Jayaswal contends that what was necessary was the actual deposit of the money and then an application, and that no application was competent until the deposit had been made. I have considered the matter very carefully both in the light of the language used by the order and the decision of this Court relating to a deposit, which so far as its amount is concerned was short by a small sum of money, and I have come to the conclusion that the contention is not well founded.