Basawan Dube Judgment-Debtor v. Anpurna Kunwar And Another

1. This purports to be a second appeal from an original order of the Munsif refusing to set aside the sale on the ground that the auction-purchaser had not deposited the balance of the purchase-money within 15 days as required by R. 85.

2. In my opinion no second appeal lies at all. Under O. 21, R. 86, the Court was not bound to order the property to be resold on default of payment. It had a discretion to do so or not. The expression “may, if the Court thinks fit,” has been substituted in place of the old word “shall”. The Court, therefore, was perfectly justified in exercising its discretion in favour of the auction-purchaser when it found that the delay was due to the fact that the civil Court itself was closed. Even if that discretion had been wrongly exercised, in my opinion, no appeal lay to the lower appellate Court, as no appeal from an order passed under R. 86 is provided for.

3. The judgment-debtor had filed his appeal as an appeal under S. 47 which, in my opinion, was not authorized. The dispute in this case was between the judgment debtor and the auction purchaser, who was not the decree-holder but a stranger, and the dispute, therefore, did not come within the provisions of S. 47. Even if an appeal from the order had lain to the lower appellate Court, it is patent that no second appeal would lie to the High Court.

4. Second appeals from such appellate orders are barred under Section 104, sub-Clause(2) of the CPC.

5. There is absolutely no ground for interference in revision. Even if the order passed by the first Court had not been according to law, that would not bring the case within S. 115: for that Court had jurisdiction and has exercised it rightly or wrongly, and has committed no irregularity in the exercise of its jurisdiction. I am, however, of opinion that on the merits also the case was justly decided and, even if the case had fallen under S. 115, I would have declined to interfere. The appeal is, accordingly, dismissed under O. 41, R. 11 of the CPC.

6. Appeal dismissed.