Decided on March 03,1963


Referred Judgements :-



- (1.)This is an appeal by the 7th plaintiff, the assignee decree holder. Five acres and 51 cents of land were sold in auction in execution of the decree in O. S. 13 of 1098 of the Haripad Munsiff's Court. The property was purchased in auction by the decree holder himself, on 12-6-1112. The sale was confirmed on 17-7-1118. The appellant thereafter got a transfer of the right of the auction purchaser and got delivery of the property. The delivery took place on 13-8-1118. An application to set aside the sale had been filed by the 4th defendant in this case and that was allowed on condition of the 4th defendant depositing the balance of the decree amount. The final order passed by the High Court in A. S. 617/1118 would indicate that that was more or less a consent order. It was provided in that order that if the 4th defendant would deposit the balance of the decree amount the sale would be set aside and possession given to the 4th defendant. In pursuance to that order the 4th defendant deposited the amount on 31-12-1119 and he got redelivery of the property on 11-1-1120. Thereafter the 4th defendant moved an application to recover the mesne profits from the property from 13-3-1118 to 11-1-1120 on the ground that the auction purchaser would be getting an undue advantage if he was allowed to retain the profit of the property during the period he was in possession of the same. That application was dismissed by the court of first instance. The 4th defendant filed an appeal before the District Court. Court allowed the appeal. It is against this order that the appeal has been filed.
(2.)The 4th defendant's application before the court was put in under S.144 CPC., for restitution, but the Trial Court found that that section was not attracted to the facts of the case and treated the application as one under
S.151 and dealt with the question on the basis that the petition was one under S.151. Therefore counsel for the appellant urged that the lower appellate court had no jurisdiction to entertain the appeal as no appeal lay from an order passed under S.151 of the Civil Procedure Code. The decision of the High Courts in India are not uniform on the question whether an appeal would lie from an order passed under S.151 for restitution, when the facts would not attract the application of S.144 of the CPC. In Usman Saheb v. Sivaramaraju ( AIR 1950 Mad. 463 ) a full bench of the Madras High Court has held that an order for restitution passed under S.151 of the CPC. was not appealable. Satianarayana Rao J. said that as there is no specific appeal provided under the Code against an order of restitution and refund, passed under S.151 of the Code, and as an order under that section does not amount to a decree, the appeal is incompetent. The same view was taken by Viswanatha Sastri J. He observed that an order for restitution under S.151 of the Code of Civil Procedure and not falling within S.47 of the CPC. is not appealable. The same view was taken in Ramanandan v. Jagannath (AIR 1958 Patna 547), Brij Mohan Singh v. Rameshan Singh (AIR 1939 Oudh 273) and Ganesh Datta v. Model Town Society (AIR 1939 Lahore 508).

(3.)A different view seems to have been taken in AIR 1931 Calcutta 779 and AIR 1948 Calcutta 37. The reasoning in AIR 1950 Mad. 463 if I may so with respect, appeals to me as correct. I therefore follow that decision and hold that the appeal to the lower appellate court was incompetent and therefore the lower appellate court had no jurisdiction to set aside the order passed by the court of first instance. As the question in this case concerns a matter arising after the delivery of the property in execution of the decree, I do not think that it relates to execution, discharge or satisfaction of the decree so as to fall within the ambit of S.47 of CPC. Hence the question of the appeal ability has to be decided on the basis that the application was one under S.151 alone. Though no second appeal would lie in this case I treat this appeal as a revision, as the lower appellate court has exercised a jurisdiction not vested in it by law. I come to the conclusion that the order passed by the lower appellate court was passed on an appeal which was incompetent in law. I therefore set aside that order and restore the order passed by the Trial Court.
In the result, the order of the lower appellate court is set aside and the appeal is allowed. The parties will bear their costs here and in the court below.


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