HARADHAN RAKSHIT Vs. GIRISH CHANDRA MUKERJI

JUDGEMENT

(1.) The questions raised before us are whether a second appeal lies to this Court and whether the appellant has locus standi to make the present application.

(2.) The judgment of the lower appellate Court has proceeded mainly, if not wholly, on the question whether the appellant had a locus standi to come in under Secs.311 and 244, C.P.C. The application was dealt with at length by the Court of first instance and that Court allowed the application and set aside the sale complained of The Munsif did not say very distinctly that the conduct of the landlord, and whose instance the sale was held on the 14th March 1906, was fraudulent, but we gather that all the essentials both under Secs.311 and 244 had been made out in the opinion of the Munsif who concluded his judgment by observing that the sale is vitiated with fraud. Now, the lower appellate Court in dealing with the merits has dealt with a hypothetical case only. The District Judge observes: "If the findings of fact arrived at by the Munsif be correct, they amount only to an irregularity and not to fraud, though the Munsif towards the end of his judgment says that the proceedings were vitiated by fraud, on the findings themselves the case could not be placed higher than under Section 311."

(3.) It appears to us that the District Judge has fallen into error in not accepting the decision of this Court which was brought to his notice, namely, the decision in that case of Azgar Ali v. Asaboddin Kazi 9 C.W.N. 134. That case was followed in Gopi Nath Chattopadhya V/s. Sajani Kanta Singh 10 C.W.N. 240 where the decree-holder was also the auction-purchaser. But apart from these two cases, there is the decision of the Full Bench in Ishan Chunder. Sirkar v. Beni Madhub Sirkar 24 C. 62; 1 C W.N. 36 and we invite the attention of the District Judge to the observations at page 73 of the report.