ABDUL WAHID Vs. BRAM KRISHNA

JUDGEMENT

(1.) Certain zamindari property belonging to the respondent Chandrika Ram was to be sold in execution of a decree of a civil Court. The property was not ancestral, but Government revenue was payable in respect thereof. If it had been ancestral, the execution of decree itself would have taken place in the Collector's office. In case of revenue paying property which is not ancestral, execution proceedings have to take place in the Court which passed the decree but the sale has to be made by the Collector. This is what happened in the case before me, and the Collector sold it on 20 July 1929, declaring the appellant Abdul Wahid as the auction-purchaser for a sum of Rs. 700. On 3 August 1929 Ram Krishna, the transferee of the judgment-debtor deposited Rs. 735 under Order 21, Rule 89, Civil P.C., for payment to the decree-holder and the auction-purchaser and for setting aside the auction sale. The sum included the decretal amount together with 5 per cent on the purchase money as compensation to the auction-purchaser. On 8 August 1929 he applied to the civil Court for sale being set aside under Order 21, Rule 89, intimating that a sum of Rs. 735 had been already deposited. On 12th August 1929, an intimation was received by the civil Court from the Collector's office that the sum of Rs. 735 deposited by Ram Krishna under Order 21, Rule 89, had been transferred to the account of the civil Court. The office of the civil Court required Ram Krishna to pay an additional sum of Rs. 7 for poundage, which he paid on 17 August 1929. It should be noticed that all the dates so far mentioned fall within 30 days after the auction sale. On the case coming up for disposal before the Munsif on 7 September 1929, the application under Order 21, Rule 89, was dismissed, and the sale confirmed, the view taken being that the deposit required by the aforesaid rule should have been made in the civil Court and not in the Collector's office. Reliance was placed on Fazal Rab V/s. Manzoor Ahmad [1918] 40 All. 425.

(2.) An appeal to the learned District Judge from the order of the first Court refusing to set aside the sale was successful. The auction-purchaser has preferred the present second appeal questioning the correctness of the view taken by the learned District Judge.

(3.) A preliminary objection is taken by the learned advocate for the respondent that no second appeal lies. Reference is made to Section 104 (2), Civil P.C. which provides that no second appeal shall lie from any order passed in appeal from an order. The argument assumed that the appeal to the lower appellate Court was under Order 43, Rule 1 (j), i. e., an appeal from order. The learned advocate for the appellant has, on the other hand, argued that in so far as an auction- purchaser is a representative of one or both of the parties to the suit, the question raised by the appeal is one under Section 47, Civil P.C., and that an order passed on such application is a decree. He argues therefore that the present appeal should be considered as a second appeal from a decree.