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B. Debi Charan Lal Vs. Khushal Rai Ratan Lal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1936All763; 165Ind.Cas.654
AppellantB. Debi Charan Lal
RespondentKhushal Rai Ratan Lal
Excerpt:
- .....of the question raised in this case as to whether a second appeal at all lies. it appears that the decree-holder obtained a simple money decree against the judgment-debtor, which was put in execution and the judgment-debtor's right and interest in a certain property were sought to be sold. the judgment-debtor objected that his particular share should be specified, but did not offer any information to the court as to the extent of his share. the decree-holder did not agree to be tied down to any particular share of the judgment-debtor in the property put up for sale. the property as entered in the proclamation of sale was put up for sale and was purchased at auction by the decree-holder himself. an application was then made by the judgment-debtor under order 21, rule 90, to have the sale.....
Judgment:

Sulaiman, C.J.

1. This appeal has been referred to a Division Bench on account of the importance of the question raised in this case as to whether a second appeal at all lies. It appears that the decree-holder obtained a simple money decree against the judgment-debtor, which was put in execution and the judgment-debtor's right and interest in a certain property were sought to be sold. The judgment-debtor objected that his particular share should be specified, but did not offer any information to the Court as to the extent of his share. The decree-holder did not agree to be tied down to any particular share of the judgment-debtor in the property put up for sale. The property as entered in the proclamation of sale was put up for sale and was purchased at auction by the decree-holder himself. An application was then made by the judgment-debtor under Order 21, Rule 90, to have the sale set aside on the ground of irregularity in publishing the sale inasmuch as the exact share of the judgment-debtor had not been specified and proclaimed. The Court rejected this application. On appeal the District Judge has dismissed the appeal. It is urged on behalf of the appellant that inasmuch as the dispute related to the execution of a decree and was one between the decree-holder on the one hand and the judgment-debtor on the other, the dispute raised a question between the parties relating to the execution of the decree within the meaning of Section 47, Civil P.C., and was therefore a decree within the meaning of Section 2, Civil P.C., with the result that a second appeal lies automatically.

2. There is authority for the view that no second appeal lies even where the purchaser is the decree-holder himself. In Satyendra Nath Choudhury v. Charu Chandra Majumdar 1927 Cal 657, the learned Judges pointed out that if a second appeal were to be allowed on the ground that the case fell under Section 47, Civil P.C., then the provisions of Section 104 would be nullified. In Section 104(2) it is laid down that where art order is passed in appeal under this section, namely '104(1)(i) an appeal from any order from which an appeal is expressly allowed by the rules,' no second appeal shall lie. We think an additional reason may also be given in support of the view that no second appeal lies because the order is not a decree at all. 'Decree' has been defined in Section 2(2), the first part of which deals with the formal expression of an adjudication conclusively determining the rights of the parties with regard to matters in controversy in the suit. The second portion of para. 1 then provides:

It shall be deemed to include the determination of any question within Section 47...but shall not include any adjudication from which an appeal lies as an appeal from an order....

3. It therefore follows that although the determination of any question within Section 47, provided of course there is a conclusive determination of the rights of the parties, is included in the definition, there is an express provision that the decree shall not include any adjudication from which an appeal lies as an appeal from an order. Now an order rejecting an application under Order 21, Rule 90, is an order from which an appeal is expressly provided under Order 43, Rule 1(j) It follows that the order being one from which an appeal is provided as an appeal from an order it cannot come within the definition of the word 'decree.' Section 100 provides for a second appeal in cases of decrees and not in cases of appealable orders. As the order in question is not a decree no second appeal lies. The appeal is accordingly dismissed with costs.


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