Walter Salis Schwabe, Kt., K.C.C.J.
1. A preliminary point is taken that no Second Appeal lies because it is said that this is an appeal on a petition based on there being a material irregularity in publishing or conducting the sale within the meaning of Order XXI, Rule 90, that the order made under Rule 92 setting aside the sale, was an order made by reason of that material irregularity or fraud, and that as no Second Appeal lies from orders made under Rule 92, there can be no Second Appeal here. The answer is that it may be perfectly true as regards part of the appeal, but one of the grounds on which the appellant relies is that no notice was given of the application for attachment and order for the sale of the property, and that that comes under Section 47 of the Civil Procedure Code, and is therefore appealable as a decree.
2. The only direct authority on the point is the judgment of Oldfield and Seshagiri Ayyar, JJ., in Neelu Neithiar v. Subramania Moothan (1920) 11 L.W. 59 where, under somewhat similar circumstances which were not really so strong as this, because the failure to give notice was at a later stage, they held that, where an application is made which is partly covered by Rule 90 of Order XXI and partly not so covered, although the order purports to have been made under Rule 92 of Order XXI, a Second Appeal will lie.
3. There are dicta in other cases to the effect that, where there is absence of notice, there is a remedy under Order XXI, Rule 90 or Section 311 of the Old Civil Procedure Code which corresponds with it, particularly in the decision of the Privy Council in Malkarjun v. Narhari (1901) I.L.R. 25 Bom. 337.(P.C.) but, on looking carefully into that case, we note that this point was in no way before the Privy Council; but apart, I think that the decision in Neelu Neithiar v. Subramania Moothan (1920) 11 L.W. 59 is an authority, and I should myself come to the same conclusion as was come to in that case, because looking at the words of Order XXI, Rule 90, they appear to me perfectly plain. What is being dealt with there is a material irregularity or fraud in publishing or conducting a sale; and I cannot bring my mind to the view that the failure to give notice of the application for leave to attach and sell is an irregularity in publishing or conducting the sale. It seems to me that it is really a contradiction in terms. There is no sale to publish or conduct until after leave of the Court has been obtained (a) to attach the property and (b) to sell.
4. Whether or not that failure to give notice is an illegality, is a matter which is entirely irrelevant for the present purpose because it is only certain kinds of irregularities that are covered by Order XXI, Rule 90. If the omission in this case was any other kind of irregularity, whether it renders the whole sale a nullity or not, it is not brought within the wording of that rule. The preliminary point fails and this appeal must proceed.
5. I agree that a Second Appeal will lie.
6. This Appeal against Appellate Order No. 45 of 1922, coming on for hearing again on Monday, Tuesday, the 24th and 25th days of September 1923, the Court (Schwabe, C.J. and Waller, J.) made the following Order of Reference to a Full Bench: