GULAM AHMAD Vs. KANHAIYALAL

JUDGEMENT

(1.) 1. In execution of a decree certain properties of the judgment-debtor appellant were put up for sale and purchased by the decree-holder and other persons who are impleaded as party respondents to this second appeal. The judgment-debtor raised various objections to the sale and wanted to have it set aside under Order 21, Rule 90, Civil P.C. Both the Courts below having refused to set the sale aside, the judgment-debtor has come up to this Court and filed this second appeal.

(2.) A preliminary objection has been taken on behalf of the respondents that no second appeal lies. Mr. M.B. Niyogi, advocate for the appellant contends that the matter being one under Section 47, Civil P.C., this appeal is competent at any rate so far as the decree-holder himself is concerned. Reliance is placed by Mr. Niyogi on the following statement appearing at p. 713 of Mulla's Civil Procedure Code, 8th Edn. When the auction-purchaser is the decree-holder himself and when an application is made to set aside the sale on a ground other than that covered by the present rule and there is no application made under Rule 89, the case falls within Section 47 and hence there is a second appeal.