LACHMAN MISRA Vs. RAMJAS SAHU

JUDGEMENT

(1.) IN execution proceedings the decree-holder put in an application under Secs.311 and 244 of the Civil P. C. for setting aside a sale in favour of Mahabir, son of Ramjas Sahu, on the allegation that there was a material irregularity that the sale was due to a collusion between the opposite parties Nos. 1 and 2 and that there was also a collusion between the Amin and the opposite party No. I. The Court of first instance granted the application and ordered the sale to be set aside. The lower appellate Court proceeding solely on the ground of material irregularity covered by Section 311 set aside the order of the first Court and confirmed the sale. The decree-holder has preferred a second appeal to this Court. A preliminary objection is taken that an order passed in appeal from an order under Section 311 is final under the provisions of Section 588 of the Code of Civil Procedure (Act XIV of 1882). The learned vakil for the decree-holder in answer to this preliminary objection submits as follows: The application was not under Section 311. It was an application under Section 244. As the questions which were raised by the application and which come within the purview of Section 244 have not been, gone into by the lower appellate Court he is entitled to come here in second appeal. IN support of this contention he relies on certain observations to be found in Golam Ahad Chowdhry V/s. Judhister Chundra Shaha 30 C. 142; Sri Maharani Beni Persad Koeri V/s. Lokhi Rai 3 C.W.N. 6; Dhani Ram V/s. Chaturbhuj A.W.N. 1899 p. 184 and Behari Singh Vs. Mukat Singh A.W.N. 1906 p. 3. Having regard to the observations in the above rulings I am of opinion that the preliminary objection has no force inasmuch as the application was not under Section 311, C.P.C., only. Coming to the merits of the case I find that the questions raised in the application which could be raised under Section 244 were not gone into by the lower appellate Court. I therefore, under the provisions of Order 41 Rule 23 of the Civil P. C. set aside the order of the lower appellate Court and remand the case to that Court with directions to re-admit the appeal under its original number in the register and to proceed to determine the appeal on the merits. Costs will abide the event.