SATYENDRA NATH CHOUDHURY Vs. CHARU CHANDRA MAJUMDAR

JUDGEMENT

(1.) One of the judgment-debtors is the appellant in this appeal. The appeal arises out of certain proceedings under Order 21, Rule 90, Civil P. C., for setting aside a sale on the ground that there was no proper service of the writ of attachment or the sale proclamation and that property really worth Rs. 1,500 fetched a price of Rs. 100 only at the sale. The decree-holder was the purchaser at the auction so held. The Munsiff allowed the application under Order 21, Rule 90, Civil P. C., and set aside the sale. On an appeal being preferred from this decision, the District Judge, being of opinion that there were no clear findings upon the questions that arose in the judgment of the learned Munsiff, sent back the record to the Court of the latter with directions to record clear findings on all such points and ordered that the findings should be re-submitted with the record to his Court within a certain period. When the matter went down to the Court of the learned Munsiff, it was taken up by a different officer and he recorded his findings on the point that arose and re-submitted the record with those findings to the appellate Court. The District Judge thereupon transferred the appeal to the file of a Subordinate Judge and the latter allowed the appeal, and dismissed the applications under Order 21, Rule 90, Civil P. C.. It is against this order of the learned Subordinate Judge that the present appeal has been preferred to this Court.

(2.) The appellant seeks to maintain this appeal, although if; arises out of proceedings under Order 21, Rule 90, Civil P. C. by a reference to the decision of a Full Bench of this Court in the case of Kailash Chandra Tarafdar V/s. Gopal Chandra Poddar A.I.R. 1926 1926 Cal. 798. The contention, shortly put, on behalf of the appellant, is that, inasmuch as in the said Full Bench decision it has been held that when the decree-holder is the auction-purchaser an order passed on an application for delivery of possession under Order 21, Rule 95, Code of Civil Procedure, is an order under Section 47 of the Code, there is no reason why under similar circumstances an order setting aside or refusing to set aside a sale should not be regarded as an order relating to the execution or satisfaction of the decree and, therefore, an order coming within the purview of Section 47, Civil P. C., and appealable as a decree within the meaning of the Civil Procedure Code. I am unable to say that this argument is an altogether ill-conceived one. But the difficulty in accepting this argument is that the Code expressly puts an order under Order 21, Rule 90 upon a different category from orders passed under Section 47 of the Code-Under Section 104 of the Code, an appeal lies from those orders only which are expressly mentioned in the said section, and it is stated that save as otherwise expressly provided in the body of this Code or by any law for the time being in force, no appeal shall lie from any other orders and Section 104 Sub-section (1) Clause (1) provides for appeals from orders made under rules from which an appeal is expressly allowed by the rules.

(3.) Appealable orders provided for by the rules are to be found in Order 43 of the First Schedule to the Code and, under Sub-section (2) of Section 104: no appeal shall lie from any order passed in appeal under this section.