Decided on February 24,1955

MAMMEN Respondents


- (1.) The only point urged on behalf of the appellant at the time of hearing of this second appeal was that delivery in pursuance of the sale certificate having been once effected, the execution court was incompetent to order delivery of the same properties to the auction purchaser a second time. This contention overlooks the fact that the first delivery was cancelled by the court as a result of an application by the 11th defendant stating that the record of delivery was not true and that the Amin had not effected real delivery of the property, and the defendants were still in possession of the property. The contention that the court has no jurisdiction to cancel the first delivery on the application of the 11th defendant is unsustainable. Under S.151 of the Civil Procedure Code, it is open to the court to pass such orders as are necessary for the ends of justice or to prevent abuse of the process of the court. At page 480 of Mullas Commentaries on the Code of Civil Procedure, 1953 edition, it is stated that the court has an inherent power to set aside the order obtained by fraud practised upon it. Therefore, it was competent for the court to set aside the first delivery on the complaint of defendant 11 that the record of delivery was brought into existence as the result of fraud, and that there had been no real delivery. The contention that the order on the 11th defendants application was passed without notice to defendant 10 and is not binding on her is also unsustainable, for defendant 11 was the karnavan of the sub-tarwad of defendants 10 and 11 and he filed the petition to cancel the first delivery on behalf of the said sub-tarwad. There is no allegation that defendant 11 was acting in fraud of the sub-tarwad in the proceedings on the petition filed by him. Defendant 10 is also now purporting to act on behalf of the same sub-tarwad. In the circumstances, the order cancelling the first delivery is binding on defendant 10 as well, and since the first delivery has been cancelled it was competent for the court to order a second delivery. No other ground was urged in this court. The second appeal, therefore, fails and is accordingly dismissed with costs.;

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