SHEO PRASAD SINGH Vs. PREMNA KUNWAR

JUDGEMENT

(1.) A preliminary objection has been taken to the hearing of this appeal on the ground that an appeal does not lie. The facts are these. The property of the appellant, who was judgement-debtor to a decree, was sold by auction. He made an application under Order XXI, Rule 90, to have the sale set aside on the ground of irregularity and fraud, in the publication and conduct of the sale. His application was allowed by the court of first instance; but on appeal to the lower appellate court that court allowed the appeal and dismissed the application. From the order of the appellate court the present appeal has been filed. Section 104 of the Code of Civil Procedure, Sub-section (2), provides that no appeal shall lie from any order passed in appeal under the section. Clause (i) of Sub-section (1) provides that an appeal shall lie from an order made under Rule 3 from which an appeal is expressly allowed by the rules Order XLIII, Rule (1), Clause (j), expressly provides an appeal from an order under Rule 92 of Order XXI. That rule refers to an order confirming or setting aside a sale. The order passed in this case was an order refusing to set aside a sale. Therefore an appeal lay to the court below under Order XLII, Rule 1, Clause (j); but, having regard to the provisions of Section 104, Sub-section (2), no further appeal from the order of the appellate court lies to this Court, The present appeal is consequently not maintainable. The learned vakil for the appellant refers to cases under the old Code of Civil Procedure in which it was held that an order made upon an application to set aside a sale on the ground of fraud, was an order under Section 244 of the Code, and therefore a second appeal lay. But the present Code has made an important alteration in this respect, and it provides in order XXI, Rule 90, that an application may be made to set aside a sale on the ground, amongst others, of fraud in the publication or conduct of the sale. Under the present Code therefore an application may be made on the ground of fraud, and, if this application is refused, under Rule 92, an appeal lies under Order XLIII, Rule 1, Clause (j); but no second appeal is allowed from the order passed by the appellate court. We accordingly allow the preliminary objection and dismiss the appeal with costs.