- (1.) THIS case has had a chequered history. One Badri Prasad had obtained a decree against Suit. Champa, Ram Kishen and Gaya Prasad. Gaya Prasad being a lunatic and Ram Kishen being a minor, they were sued under the guardianship of Smt. Champa, wife of Gaya Prasad. The suit was decreed and in execution of the decree, a house fetching a rent of Rs. 25/- per mensem was sold at auction on 28-8-1940. The highest bid of Rs. 2,425/- was of the appellants, Hira Lal and two others. The property was sold through a firm of auctioneers and not through the court Amin. The auction-purchasers deposited 25 per cent. on the amount of the purchase-money with the auctioneers appointed by the court. On 11-9-1940, they gave a cheque for the balance to the same auctioneers. The auctioneers, however, did not deposit the amount in court till 14-9-1940. On 5-9-1940, the judgment-debtors filed certain objections under Order 21, Rule 90, Civil P. C. It was alleged that the property had been sold for a grossly inadequate price and the house was worth at least Rs. 12,000/- to Rs. 15,000/ -. It was also alleged that there were other irregularities in the publication and the conduct of the sale. These objections were dismissed by the executing court on 25-1-1941 and the sale was con firmed. The auction-purchasers filed an appeal which was dismissed on 15-7-1941 by the lower appellate court. There was an execution second appeal filed in this Court which was allowed on 7-10-1949. The order dated 25-1-1941 was set aside and the case was sent back to the trial court for consideration of the objection under Order 21, Rule 90, Civil P. C. On. 19-11-1949 the judgment-debtors made an application that they came to know on 16-11-1949, while inspecting the record, that the auction-purchasers had not deposited the balance of the purchase-money within 15 days of the auction sale as required under Order 21, rule 85 of the Code and submitted that this objection could not be taken on 5-9-1940 when the previous objections were filed but the objection could be urged even without a former written application and they, therefore, prayed that the sale be set aside and this objection may be considered along with the other objections which had already been filed in court. On 24-2-1950, the lower court considered the objections of the judgment-debtors and as regards the applications dated 19-11-1949, the learned Munsif held that it should have been filed within 30 days under article 166, Limitation Act, that it was barred by time and it could not, therefore, be taken into consideration. As regards the other objections contained in the application of 5-9-1940, the learned Judge was of the opinion that the house was not worth more than Rs. 4,000/- at the time when it was sold and it could not, therefore, be said that the price of Rs. 2,425/- which it fetched was grossly inadequate. The other pleas of irregularity in the publication and conduct of the sale, it was held, were not proved and the application was dismissed on 24-2-1950. The judgment-debtors appealed. The lower appellate court did not go into the objections contained in the application of 5-9-1940 but held that the balance of the sale consideration not having been paid within 15 days and the provisions of Order 21, Rule 85 being mandatory, there was no sale which could be now confirmed and allowed the appeal and set aside the order of the trial court. Against this order dated 3-4-1951, this second appeal has been filed.
(2.) A preliminary objection was taken by learned counsel for the judgment-debtor respondents that no second appeal lies. Learned counsel has relied on the provisions of Section 104, sub-section (2) of the Code. Section 104 (2) is to the following effect: "no appeal shall lie from any order passed in appeal under this section. " the appeal before the lower appellate court, it is urged, was under Order 43, Rule 1 (j) of the code. Learned counsel has developed this argument further and has pointed out that the trial court refused to entertain the application of the 19-11-1949, on the ground that it was barred by limitation and the order appealed against was passed under Order 21, Rule 92, dismissing the application dated 5-9-1940, filed under Order 21, Rule 90, and no second appeal, would, therefore, lie by reason of the provisions of Section 104 (2) of the Code. The lower appellate court, however, did not consider the objections under Order 21, Rule 90 and allowed the appeal on the ground that the sale consideration was not deposited within 15 days as required by Order 21, Rule 85. An objection under Order 21, Rule 85 has been held to be not an objection relating to the publication and conduct of the sale. The point is concluded by the decision of a Pull Bench of this Court in -- 'sita Ram v. Janki Ram', AIR 1922 All 200 (A ). Learned counsel has to admit that in the appeal that he filed before the lower appellate court, he raised both the objections again and the lower appellate court gave no decision on the first group of objections which fell under Order 21, Rule 90, and decided the appeal on the other objection that the sale consideration not having been deposited within the time allowed, there was no sale which could be confirmed by the learned Judge. In the case of 'air 1922 All 200 (A)' the Full Bench quoted with approval the earlier decision of this Court in -- 'ram Dial v. Ram Das', 1 All 181 (B) which was under the Civil Procedure Code of 1859, as amended by Act 23 of 1861. The portion quoted in the judgment reads as follows: "the judgment-debtor and (if his claim be not satisfied out of the proceeds of the re-sale) the original decree-holder stand in the position of decree-holders who have obtained judgment against the defaulting purchaser for damages occasioned by his default. The defaulting purchaser stands in the position of a judgment- debtor against whom a decree for such damages has been passed. They are parties to the proceeding which is substituted for the suit. . . . . . and the rule relating to appeals must be applied, 'mutatis mutandis', equally with any other of the rules governing executions of decrees. " The Full Bench then proceeded as follows; "in effect the view taken was that the adjudication, in a case like the present, between the judgment-debtor and the defaulting purchaser, amounts to a decree and that appeals lie under the provisions governing regular appeals from decrees. The position does not seem to be altered by any changes which have since been made in the law; if anything, the case in favour of the maintainability of an appeal is made a little stronger by the definition of the word 'decree' in the Code of 1908. . . . . . . . " The facts of that case were that the property had been sold but the person who had made the highest bid failed to deposit 25 per cent. of the purchase-money as required under Order 21, Rule 84 of the Code with the result that the property was directed to be re-sold and on resale there being a big deficiency in the price fetched, proceedings were taken to realise the balance from the previous auction-purchaser under the provisions of Order 21, Rule 86 of the Code. It was held by the learned Judges that the order of the lower court amounted to a decree and an appeal lay as an appeal from a decree.
(3.) IF an objection, that the provisions of Order 21. Rule 85 of the Code had not been complied with, is not an objection relating to the publication and conduct of the sale, Order 21, Rules 90 and 92, will not apply to it and Section 104 (2) of the Code will not bar a second appeal.;