Alfred Henry Lionel Leach, C.J.
1. This is an appeal under -the Letters Patent from a decision of King, J., dismissing an appeal which the appellant had filed challenging the correctness of an order passed by the District Judge of Nellore. The respondent, who is the Official Receiver of Nellore, says that no appeal lay to this Court from the order of the District Judge and this question has been argued first.
2. On the 15th January, 1935, the appellant obtained a final decree for sale in a suit which he had filed against the second respondent to enforce a mortgage. In the month of August in. that year the second respondent was adjudicated an insolvent. The appellant, who says he had no knowledge of the adjudication proceeded to execute his decree, and on the 17th August, 1936, the property was sold by the Court. The appellant was the purchaser. On the 16th September, 1936, the first respondent filed an application under Order 21, Rule 90, Civil Procedure Code, in which he asked for an order setting aside the sale on the ground that he had received no notice of it and also because the sale had resulted in substantial loss to him as the representative of the estate of the judgment-debtor. The execution proceedings, had taken place in the Court of the District Munsif of Kanigiri and consequently the first respondent's application was made in that Court. The District Munsif held that the Official Receiver was not a necessary party to the proceedings and that there had been no substantial injury caused by the sale. The first respondent appealed to the District Judge, who reversed both the findings of the District Munsif.
3. The first respondent says that no appeal lies from the decision, of the District Judge by reason of Sub-section (2) of Section 104, Civil Procedure Code, the appeal to him being from an order which fell within Order 43, Rule 1 (j). The questions between the appellant and the first respondent were, however, questions which also fell within the purview of Section 47 of the Code. There was the decree-holder on the one side and the Official Receiver, representing the judgment-debtor, on the other. In these circumstances the appellant claims the right of a second appeal. That a second appeal does arise in such circumstances was recognised by a Bench of this Court in Anantharama Aiyar v. Kuttimalu Kovilamma : (1916)30MLJ611 , and a similar decision has been given by the Calcutta High Court--See Dineshchandra Ray Chauduri v. Jahanali Biswas I.L.R.(1934) Cal. 457. The judgment in Anantharama Aiyar v. Kuttimalu Kovilamma : (1916)30MLJ611 , is binding on us and decides against him the preliminary objection taken by the first respondent.
4. The decision of King, J., dismissing the second appeal was based on the judgment of this Court in Mallikarjuna v. Official Receiver, Kistna : AIR1938Mad449 where it was held that Sub-section (3) of Section 51 of the Provincial Insolvency Act only applies to sales which have taken place before the order of adjudication. Learned Counsel for the appellant admits that this decision is against him, as is also the decision of another Bench of this Court, namely that given in Anantharama Aiyar v. Kuttimalu Kovilamma : (1916)30MLJ611 . He says, however, that a contrary opinion was expressed by Venkatasubba Rao, J., sitting with Cornish, J., in Muthan Chettiar v. Venkituswami Naicken : AIR1936Mad819 , and in these circumstances he asks that the question be referred to a Full Bench. The judgment of Venkatasubba Rao, J., in Muthan Chettiar v. Venkituswami Naicken : AIR1936Mad819 in so far as it deals with the question now under discussion, was entirely obiter, and the observations of Venkatasubba Rao, J., were fully discussed in the judgment of Burn, J., in Mallikarjuna v. Official Receiver, Kistna : AIR1938Mad449 . We see no necessity for a reference to a Full Bench, especially as the last mentioned case is supported by the judgment of this Court in Anantharama Aiyar v. Kuttimalu Kovilamma : (1916)30MLJ611 . The appeal fails and will be dismissed with costs.