NAND KISHORE SINGH Vs. NAGENDRA BALA DEBI

JUDGEMENT

(1.) THIS appeal by the judgment-debtor, so far as it purports to be against the order of the lower appellate Court dismissing his appeal from an order under Order 21, Rule 90, Civil P.C., is incompetent as no second appeal lies. The application, however, was not only under Order 21, Rule 90, but also under Section 47 of the Code, and it is contended that the sale was a nullity because it was held on a day subsequent to the date for which it was advertised. The latter date was 5th February 1934. The sale was actually held on the following day presumably because there were other sales to be held on the previous day as it was the first day of the monthly sales. The learned advocate for the appellant relied on a decision of this Court in Jagdish Bahadur V/s. Ramji Ram AIR 1934 Pat 659 in which it was held that where a sale was being kept "under hammer" it must be deemed to have been started and therefore, a sale held on a subsequent date to which it was not postponed was set aside. That however, was an appeal from a decision under C. 21, Rule 90 and it was not held that the postponement of the sale in those circumstances had the effect of making the sale a nullity. The case in Motahar Hossain V/s. Mohammad Yakub , also referred to by the learned advocate, was a case of a sale on a date that had never been fixed for it and of which the judgment-debtor could not have had notice. Another case that he cited, Rajagopala Ayyar V/s. Ramanujachariar, AIR 1924 Mad 431, was held by a Full Bench of the Madras High Court to have been void because there had been no notice under Order 21, Rule 22. None of these cases, therefore is authority for the proposition that the holding of a sale fixed for the first day of the monthly sales on the following day in its due order because it could not be held earlier is illegal. In 39 Cal 26 Lal Singh V/s. Ravaneshwar Persad Singh (1912) 39 Cal 26, it was held by the Privy Council that it was not even a material irregularity. There is, therefore, no ground for interference with the decision of the learned Subordinate Judge and the appeal is dismissed with costs. Leave to appeal under the Letters Patent is refused.