FIRM CHAITANYA KRISHNA MANDAL Vs. JAGAT CHANDRA BANIKYA

JUDGEMENT

(1.) This Rule is directed against an order passed by the Subordinate Judge of Tippera dated the 26 of April 1926 and also against an order passed by the Munsif, 3 Court of Chandpur, dated the 14 of November 1925. The facts which led up to the application upon which this Rule has been issued are the following: The petitioners in this Rule obtained a decree for money against the opposite party. The said decree was passed in a suit which had been instituted by the petitioners for recovery of money and during the pendency of the said suit on or before the 11 of June 1923, the petitioners attached before judgment three properties belonging to the opposite party. The decree was passed on the 26 of September 1923 and in execution of the said decree the three properties were advertised for sale. In the meantime another person, namely, one Nagarbashi obtained another money decree against the opposite party and attached one of the properties namely Lot No. 1 out of the aforesaid three properties and the said lot was put up to sale and purchased by the said decree-holder Nagarbashi. The petitioners thereafter put in a petition stating that Lot No. 1 had already been sold as above stated and consequently that it could not be sold again and praying that only Lots Nos. 2 and 3 might be sold. Lots Nos. 2 and 3 were then sold in execution of the petitioner's decree and were purchased by the petitioners. The sale was confirmed and the execution case relating to the petitioner's decree was struck off on part satisfaction.

(2.) Within 30 days of the sale of Lot No. 1 the opposite party paid in the decretal amount due on Nagarbashi's decree and in consequence of the said payment the sale of Lot No. 1 was not confirmed but was set aside. Thereafter the petitioners proceeded against the said Lot No 1 in execution for recovery of the balance of the decretal amount due to them and the said lot was again put up to sale and was purchased by the petitioners on the 24 of October 1925. Thereafter certain claims were put in on behalf of parties who are not before us but those claims were not allowed. The sale in favour of the petitioners in respect of Lot No. 1, however, was sot aside by the learned Munsif by an order passed on the 24 of November 1925. The Munsif held that the sale of Lot No. 1 had take place without attachment and was therefore void. He therefore, in the exercise of his powers under Section 151 of the Code of Civil Procedure set aside the sale and refused to confirm it. Against this order the petitioners preferred an appeal which was dismissed by the Subordinate Judge of Tippera on the 26 of April 1926, the learned Subordinate Judge being of opinion that the appeal was incompetent. The petitioners have thereafter moved this Court and obtained the present Rule.

(3.) In the Rule two questions have been urged on behalf of the petitioners. The first is to the effect that the order which had been passed by the learned Munsif may very well be regarded as one passed under the provisions of Order 21, Rule 92 of the Civil P. C. and that, therefore, the learned Subordinate Judge was wrong in holding. that no appeal lay from the said order.