BENODE BEHARI BHADRA Vs. RAM SARUP CHAMAR

JUDGEMENT

(1.) This is an appeal against an appellate order, which reversed an order of the Court of first instance, setting aside a sale in execution on the ground of fraud and material irregularity in publishing and conducting it, and remanded the case for further consideration.

(2.) A preliminary objection is taken that no such appeal lies under the present Code of Civil Procedure. This objection undoubtedly must prevail if the present Code applies; for under it fraud is put on the same footing as material irregularity by Order XXI, Rule 90, and Section 104, Sub-section (2), read with. Order XLIII, Clause (i), makes it clear that there is now no second appeal in a case such as this.

(3.) Under the Code of 1882, a sale could be impeached for fraud under Section 244 thereof, and, therefore, a second appeal lay. The sale, with which we are here concerned, was held on the 17th September 1900, that is to say, under the old Code. The first application for setting it aside was made on the 23rd July 1907, and allowed by the first Court on the 6th July 1908; but the order was set aside on appeal and the case remanded op the 6th [November 1908. On remand the application was dismissed by the Court of first instance on the 12th June 1909. There was an appeal, and on the 29th January 1910, the original order was once more set aside and the case, again, remanded. The present second appeal is against the remand.