NAGAPPA Vs. BALKISANDAS

JUDGEMENT

(1.) THE question referred to the Bench in this case is whether an appeal does or does not lie against an order, passed under Rule 71 of Order 21 of the Civil Procedure Code, that a defaulting bidder at a sale in execution shall pay to the decree-holder the excess of his bid over the highest bid at the re-sale. The answer is undoubtedly that an appeal does lie; the reference was made necessary only by the official publication of the judgment in Parbat v. Bindraj [1911] 7 N.L.R. 134. In that case Drake-Brockman, J.C., held that a person against whom such an order had been passed could file a regular suit to set aside the order and to recover the money realized from him; if he can bring a separate suit for the purpose he cannot, of course, appeal against the order.

(2.) AN order under Rule 71 of Order 21 is not one of those mentioned in Order 43 as appealable. But its very nature, as compared with the orders there mentioned, makes it highly improbable that it would not have been included among them, unless it ware appealable otherwise. And it certainly is appealable otherwise, first because it completely satisfies the definition of a decree given in Section 2 of the Civil Procedure Code, and also because there can be no doubt about its being a determination of a question-within Section 47 of the Code.

(3.) THAT is the view taken by all the High-Courts in India, including that of Allahabad, where the decision in Deoki Nandan Rai v. Tapesri Lal [1892] 14 All. 201 has been over-ruled several times. The matter was specifically considered in the Calcutta case of Kali Kishori Deb v. Guru Prosad [1897] 25 Cal. 99, and the Madras case of Amir Baksha Sahib v. Venkatachala Mudali [1895] 18 Mad. 439, and by a Full Bench of the Allahabad High Court in Sita Ram v. Janki Ram A.I.R. 1922 All. 200, and in Gangadas Dayabhai v. Bai Suraj [1911] 36 Bom. 329, the Bombay High Court heard and allowed a second appeal on the point without any question.