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Daivanayagam Pillai Vs. Rangaswamy Aiyar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1895)5MLJ153
AppellantDaivanayagam Pillai
RespondentRangaswamy Aiyar
Cases Referred and Viraraghava v. Venkata I.L.R.
Excerpt:
- - i am of opinion that the objection is well-founded......by act vii of 1888 that the orders passed in appeals under section 588 shall be final. by of the civil procedure code it is expressly declared that an order specified in section 588 is not a decree. no second appeal can therefore be taken to lie under the provisions of the code relating generally to appeal decrees. it is urged that in the case before me the decree-holder who was a party to the suit was the purchaser at the court-sale and that the order must therefore be taken to be an order passed under section 244. but it is not enough that the question determined is one mentioned in section 244. in order that the order may be a decree, it is also necessary that the order should not be one specified in section 588. under section 2 of the code of civil procedure it is immaterial.....
Judgment:

Muthusami Aiyar, J.

1. The preliminary objection is taken that no second appeal lies in this case. I am of opinion that the objection is well-founded. I held in appeal against appellate order No. 18 of 1893 that no second appeal lay against an order made under Section 588. An order refusing to set aside a sale is appealable under Section 588 and it is provided by Act VII of 1888 that the orders passed in appeals under Section 588 shall be final. By of the Civil Procedure Code it is expressly declared that an order specified in Section 588 is not a decree. No second appeal can therefore be taken to lie under the provisions of the code relating generally to appeal decrees. It is urged that in the case before me the decree-holder who was a party to the suit was the purchaser at the court-sale and that the order must therefore be taken to be an order passed under Section 244. But it is not enough that the question determined is one mentioned in Section 244. In order that the order may be a decree, it is also necessary that the order should not be one specified in Section 588. Under Section 2 of the Code of Civil Procedure it is immaterial whether a decree-holder or a third party is the purchaser at the court-sale. The same view was taken by the Full Bench at Calcutta in the case Nana Kumar Boy v. Gulam Chander Dey I.L.R. (1891) C. 422 My attention is, however called to the cases, Vallabhan v. Pangunni I.L.R. (1889) M. 454 Muttia v. Appasamis I. L. R. (1890) M. 504 and Viraraghava v. Venkata I.L.R. (1892) M. 287 But none of them is in point and this question did not arise in those cases.


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