Jadab Chandra Mukherji Auction-Purchaser v. Joy Gopal Bhattacharya Judgment-Debtor .

1. In this case, one of the judgment-debtors applied to set aside a sale partly on the ground of fraud in the publication and conduct and partly on the ground that the property had been purchased by one of his fellow judgment-debtors. The Munsif, though apparently he was not satisfied with the proof of service of notice, yet refused to set aside the sale on the ground of irregularity in publication and conduct, for this is the effect of his order. But he did set aside the sale on the second ground, namely that the real purchaser was one of the judgment-debtors. The auction-purchaser appealed to the Sub-ordinate Judge and the Sub-ordinate Judge held that no appeal lay.

2. The auction-purchaser appeals to this Court. It appears to us that the current of authority is to the effect that no appeal lies in this case. In the case of Roghu Singh v. Misri Singh . [1894] 21 Cal. 825., it was held that no appeal lay from an order setting aside a sale under Section 173 of the Ben. Ten. Act, and the learned Judges held that the order in question could not fall under Section 244 of the CPC, because the appellant, that is to say, the auction-purchaser, was an outsider and not a party to the suit in which the decree was made. Then again in the case of Harabandhu Adhikari v. Harish Chandra Dey . [1899] 3 C.W.N 184., it was held that no appeal lay at the instance of the auction-purchaser against an order setting aside a sale under Section 173 of the Ben. Ten. Act: and the learned Judges remarked that “the question is not one between the judgment-debtor and decree-holder, but between persons who were not parties to the suit and the auction-purchaser, and we fail to see how such a case can be brought within the provision of Section 244 of the CPC” The learned pleader for the appellant relies on the case of Chand Monee Dasya v. Santo Monee Dasya . [1897] 24 Cal. 707, in which it was held in a similar case to this that the judgment-debtors can appeal: but the effect of that decision has been very considerably weakened by the unreported decision in Rule No. 2159 of 1898, decided on 21th November 1898 by the same Judges. In that case, they say that in the case reported in Chand Monee Dasya v. Santo Monee Dasya, the appellant was the judgment-debtor or one of the judgment-debtors and a party to the suit, while in the case in Raghu Singh v. Misri Singh, the appellant was the auction-purchaser described in the judgment as an outsider. The learned Judges relied on this circumstance as showing that there was no real conflict between the case reported in Raghu Singh v. Misri Singh and the case reported as Chand Monee Dasya v. Santo Monee Dasya.

3. It may perhaps be somewhat difficult to reconcile these decisions with Hira Lal Ghose v. Chundra Kanto Ghose . [1899] 26 Cal. 539 and perhaps if the matter were res integra, we might hesitate in holding that in the circumstances of this case, no appeal would lie at the instance of the auction-purchaser, but the point may now be regarded as settled.

4. Secondly, it has been argued that as the original application was not only under S. 173 but was also to the effect that the sale was vitiated by fraud and irregularity and therefore came within the scope of S. 47, it must be held that an appeal lay. But that portion of the petition was decided in the appellant's favour and he could not possibly appeal to the Sub-ordinate Judge against that portion of the order.

5. We think therefore that the Judge was right in holding that no appeal lay to him, and that being so, this appeal must be dismissed with costs, and we need not decide whether or not an appeal lies to us.

6. We assess the hearing-fee at two gold mohurs.

7. As regards the rule, it is contended on behalf of the petitioner that the order of the first Court ought to be set aside because the Court had no jurisdiction to grant this application when, as a matter of fact, it had already been decided between the parties. But on looking into the judgments of both the Courts below, we find that no mention of this point was ever made, and we cannot allow a point the determination of which depends almost entirely on a question of fact, to be raised for the first time in revision. The rule is accordingly discharged.

V.B/R.K

8. Appeal dismissed; Rule discharged.