FULSUMMANNESSA BIBEE Vs. HALAMADDI MOLLA

JUDGEMENT

(1.) WE are of opinion that this appeal is barred under Sub-section 2 of Section 104, Code of Civil Procedure. The appellant was the decree-holder in the Court below, and at his instance the property of the judgment-debtors was sold in execution on the 17th July 1912. On the 25th April 1914, the judgment-debtors applied to have the sale set aside, on the ground that it was vitiated by material irregularity and fraud in publication. But they also alleged fraud of a more comprehensive character, viz., that, the decree-holder had taken out execution, though his decree had been satisfied in full out of Court. The Trial Court dismissed the application. On appeal the Subordinate Judge held that the allegation that the decree had been satisfied in full was not established. He name to the conclusion, however, that the sale proclamation had been fraudulently suppressed, and that the property had been purchased by the decree-holder at a price much lower than its proper value. On these findings, the Subordinate Judge has set aside the sale under Rules 90 and 92 of Order XXI of the Code. Oh the present appeal it is contended that the case falls beyond the scope of Rule 90 of Order XXI and comes within the scope of Section 47, in so far as the judgment-debtors impeached the sale on the ground of fraud antecedent to its publication and that, in this view, the order of the Subordinate Judge is a decree within the meaning of Section 2 of the Code of Civil Procedure and is appealable as such. It is not necessary to determine, whether the decision of a question of fraud antecedent to the publication and conduct of sale, brings the case within the scope of Section 47; for it is plain that in so far as fraud was imputed in connection with the publication of the sale, the case is covered completely by Rule 90. The order of the Subordinate Judge, in so far as the case was within the scope of Rule 90, was thus an order under that rule, and that rule alone. WE cannot hold that by reason of an allegation of fraud of a more comprehensive scope, the character of the decision of the question within the scope of Rule 90 was altered. The order of the Court of First Instance was thus open to appeal under Order XLIII, Rule 1(j), and the order passed in appeal was final under Section 104(2). Consequently, the present appeal is incompetent in so far as the case is within the scope of Rule 90, As the validity of the order cannot be assailed in second appeal, when regarded as an order based on the ground of fraud in the publication of the sale, it is immaterial to consider whether fraud of a wider scope imputed to the decree-holder has or has not been established: ef. Jadab Chandra v. Joy Gopal 20 Ind. Cas. 191 : 19 C.L.J. 81. The result is that this appeal is dismissed.