RUDRAPPA VIRAPPA MENSINKAI Vs. BASHETTAPPA CHENBASAPPA NEELI

JUDGEMENT

(1.) The question in this appeal is whether the sale through Court held in execution of the decree against the defendant-appellant, the judgment-debtor, is void. The plaintiff-respondent obtained against the judgment-debtor a decree for about Rs. 2,600. The decree-holder proceeded in execution. Execution was transferred to the Collector and the sale of immoveble property was fixed on March 28, 1925. On that day the precise hour is not on record the judgment-debtor-appellant deposited Rs. 300 in the Court of the Subordinate Judge who passed the decree and applied for stay and obtained it. But before this order of stay could be transmitted to the Mamlatdar in the same town who was holding the sale, the property was sold for Rs. 2,000. On April 6, 1925, the appellant applied to set aside the sale on the ground that, having obtained the stay, as he urged, before the sale actually took place, the sale was void. The auction-purchaser was not made a party to this application, The trial Court was unable to find whether the stay order was made before or after the sale, but as the sale was completed in any case, before the order for stay was communicated to the Mamlatdar, held that the sale was not, therefore, invalid, and rejected the application. This order was confirmed in appeal by the District Court on the ground that the appellant was not shown to have sustained substantial injury. The second appeal was dismissed and the judgment-debtor appeals under the Letters Patent.

(2.) A preliminary objection is taken for the respondent that no appeal lies. It is argued that the second application could only lie under Order XXI, Rule 89, of the Civil Procedure Code, and that under Section 104 only one appeal lay and no more. For the appellant it is contended that the present order fell under Section 47 and a second appeal lies on the merits. Reliance is placed for the appellant on the case of Hukum Chand Boid V/s. Kamalanand Singh (1905) I.L.R. 33 Cal. 927: and for the respondent on the case of Venkatachalapati Rao V/s. Kameswaramma (1917) I.L.R. 41 Mad. 151, F.B.

(3.) It is not clear to us under what Section the petitioner-appellant applied for, and the decreeing Court granted, a stay on March 28, 1925. Order XXI, Rule 26, is pressed into service for the appellant, but it applies in terms only in the case of a decree transferred for execution to another Court and does not apply to a ease such as the present. Moreover, it is, in our opinion, a correct argument for the respondent that the execution and sale having been transferred to the Collector under Section 68 of the Civil Procedure Code, such application to adjourn the sale lay to the Collector rather than to the decreeing Court. If so, the original application would not fall under Section 47 and no second appeal lies.