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Mahabir Sahu Vs. Bhirgu Rai and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported inAIR1915All54; 28Ind.Cas.270
AppellantMahabir Sahu
RespondentBhirgu Rai and ors.
Excerpt:
civil procedure code (act v of 1908), order xxi, rule 72(3), order xliii, rule 1(j), section 104(2) - order of appellate court setting aside sale in execution--second appeal, whether maintainable--revision--high court's power to interfere with a wrong decision on point of law. - - as the order was clearly one passed under order xxi, rule 72, clause (3), an appeal lay to the district judge under order xliii, rule 1(j), but a further appeal to this court is clearly barred by section 104, sub-section 2, of the code......act, as the judgment-debtors in this application to have the stile set aside said that the decree-holder had purchased the property without the knowledge; of the judgment-debtors. whether this was the view of the learned judge or not matters little. he may have been wrong in holding that the judgment-debtors application was within time; but we cannot interfere in revision with his order merely because he decided the question of limitation wrongly. it is quite clear that he had jurisdiction to entertain the appeal and dispose of the matter before him. tins application fails and is dismissed with costs.
Judgment:

Appeal from Order No. 91 of 1914.

1. This is an appeal by a purchaser of property at an execution sale. According to the finding of the lower Appellate Court the decree-holder, Ram Jas Shan, purchased the property in the name of his son, the present appellant. The judgment-debtors applied to have the sale set aside on various grounds, amongst others on the ground that the decree-holder had purchased the property in the name of his son without obtaining the permission of the Court. The Munsif rejected the application. On appeal the District Judge held that the purchase was really made by the decree holder himself and finding that the property fetched a very low price, he set aside the sale. As the order was clearly one passed under Order XXI, Rule 72, Clause (3), an appeal lay to the District Judge under Order XLIII, Rule 1(j), but a further appeal to this Court is clearly barred by Section 104, Sub-section 2, of the Code. This appeal, therefore, fails and is dismissed with costs.

Civil Revision No. 140 of 1914.

2. This application for revision was presented along with first appeal from Order No. 91 of 1914, which we have disposed of to-day. We have held that the present applicant laid no right of appeal to this Court against the order of the District Judge. The applicant anticipating this decision tiled this application foe revision of the same order. In support of this application it is contended that the District Judge had no jurisdiction to set aside the sale because before the application of the judgment-debtors to have the sale set aside was aside the sale had been confirmed and because the application having been made more that thirty days after the date of the sale, was barred by limitation under Article 166 of the first Schedule to the Limitation Act. The learned District Judge does not in so many words say so, but it seems to us probable that he treated the case as being covered by Section 118 of the Limitation Act, as the judgment-debtors in this application to have the stile set aside said that the decree-holder had purchased the property without the knowledge; of the judgment-debtors. Whether this was the view of the learned Judge or not matters little. He may have been wrong in holding that the judgment-debtors application was within time; but we cannot interfere in revision with his order merely because he decided the question of limitation wrongly. It is quite clear that he had jurisdiction to entertain the appeal and dispose of the matter before him. Tins application fails and is dismissed with costs.


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