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Rajacharya Sheshacharya Shirhatti Vs. Chemanna Gurushantappa Magavi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case Number Second Appeal No. 636 of 1919
Judge
Reported inAIR1921Bom229; (1920)22BOMLR1193
AppellantRajacharya Sheshacharya Shirhatti
RespondentChemanna Gurushantappa Magavi
DispositionAppeal dismissed
Excerpt:
civil procedure code (act v of 1908), section 102 - order xxi, rule, 71-sale-execution--re-sale on purchaser's default -application to recover deficiency on re-sale from purchaser-second appeal against order on application.;no second appeal lies from an order passed on an application made by the decree-holder, under order xxi, rule 71, of the civil procedure code 1908, to recover deficiency of price from a defaulting purchaser, when the decree is for a money claim of leas than rs. 50. - .....that amount. it would have been a small cause court suit. but under the provisions of rule 71 the decree-holder or the judgment-debtor can proceed in execution to recover the deficiency as if there had been a decree already passed for the payment of that amount. we think, therefore, that we must treat the application made by the plaintiff as one made in execution of a small cause court decree, and there is no second appeal, from such an application. there is no reason why we should treat it as an application under section 115 of the civil procedure code. the appeal is dismissed with costs.
Judgment:

Norman Macleod, Kt., C.J.

1. The plaintiff-applicant applied under Order XXI, Rule 71 to recover the deficiency of price from a defaulting purchaser. His claim has been disallowed in two Courts. The question arises whether a second appeal lies. The claim is for Rs. 360. But for the provisions of Rule 71, a suit would have had to be filed for that amount. It would have been a Small Cause Court suit. But under the provisions of Rule 71 the decree-holder or the judgment-debtor can proceed in execution to recover the deficiency as if there had been a decree already passed for the payment of that amount. We think, therefore, that we must treat the application made by the plaintiff as one made in execution of a Small Cause Court decree, and there is no second appeal, from such an application. There is no reason why we should treat it as an application under Section 115 of the Civil Procedure Code. The appeal is dismissed with costs.


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