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Aksma Pillai and Vs. Govindarajulu Chetty and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in84Ind.Cas.975
AppellantAksma Pillai And; Ponnusami Mudali
RespondentGovindarajulu Chetty and ors.
Cases ReferredIn Maula Bux v. Raghubar Ganjhu
Excerpt:
civil procedure code (act v of 1908), sections 47, 151, order xxi, rule 90 - court sale, setting aside of--inherent powers of court-second appeal, whether lies. - .....order xxi, rule 90, holding that there was no evidence of fraud or irregularity. on appeal the district judge found that the judgment-debtors had no cause-for complaint on the score that lots nos. 1 and 2 were sold for a low price, nor were they adversely affected as regards the retnaining lot no. 3. there was, therefore, no substantial injury. he records no finding as to fraud, apparently agreeing with the lower court that there was no proof. he thus practically confirms the order under order xxi, rule 90. but in his 6th paragraph he finds that the lower courts' orders on m. p. no. 230 of 1917 were not brought to the notice of the court which directed the sale and inasmuch as the sale was in contravention of the orders on m.p. no. 30 of 1917, which were final, the sale must be set.....
Judgment:

Jackson, J.

1. The District Munsif of Chingleput in Civil Miscellaneous Petition No. 453 of 1920 dismissed the application of the present respondents under Order XXI, Rule 90, holding that there was no evidence of fraud or irregularity. On appeal the District Judge found that the judgment-debtors had no cause-for complaint on the score that lots Nos. 1 and 2 were sold for a low price, nor were they adversely affected as regards the retnaining lot No. 3. There was, therefore, no substantial injury. He records no finding as to fraud, apparently agreeing with the lower Court that there was no proof. He thus practically confirms the order under Order XXI, Rule 90. But in his 6th paragraph he finds that the lower Courts' orders on M. P. No. 230 of 1917 were not brought to the notice of the Court which directed the sale and inasmuch as the sale was in contravention of the orders on M.P. No. 30 of 1917, which were final, the sale must be set aside. This is to break fresh ground. The Judgment-debtors cited the failure to bring the previous petition to the lower Court's notice as evidence of plaintiff's fraud. (Affidavit in M.P. No. 453 of 1920, para. 6). But the District Judge does not find that there was fraud. He merely finds that the sale was in contravention of the orders on M.P. No. 230 of 1917. There is no objection to the Judge when the sale was before him upon appeal considering its validity from every point of view cf. Palaniappa Udaya v. Arumuga Pandaram 33 Ind. Cas. 692 : (1916) 1 M.W.N. 256 and exercising his inherent jurisdiction. The ruling that a Court must confine itself to Section 311 of the old Code, Harbans Lal v. Kundan Lal 21 A. 140 : A.W.N. (1898) 212 : 9 Ind. Dec. (N.S.) 799 was before anything like Section 151 was embodied in the Statute. And if the Judge decides to set the sale aside not on the ground of material irregularity occasioning substantial injury, but merely on the ground that an order has been violated, he cannot be said to be acting under Order XXI, Rule 90; He must be acting under his inherent powers. That being so, an appeal will lie to this Court, although no second appeal lies from an order under Order XXI, Rule 90, Assimuddi Sheikh v. Sundari Bibee 10 Ind. Cas. 345 : 38 C.P 339 : 15 C.W.N. 844 : 14 C.L.J. 224. The action of the District Judge is very similar to that discussed at page 610 Page of 27 M.L.J.-[Ed.] by Tyabji, J., in Muthiah Chettiar v. Bawa Sajiib 26 Ind. Cas. 46 : 27 M.L.J. 605 ; 1 L.W. 969. Oldfield, J., in the same case at page 606 Page of 27 M.L.J.-[Ed.] quotes the appellant as urging that remedies lie alternatively under Order XXI, Rule 90 ors. 47. This argues some confusion, If the parties disputing the sale are parties to the suit, they approach the Court tinder Section 47 which decides the forum. The Court then proceeds according to its statutory powers. It may exercise its inherent jurisdiction under Section 151, or it may exercise its power under Order XXI, Rule 90. These are really the alternative provisions and this is presumably what is meant in Palaniappa Udayar v. Arumuga Pandaram 21 A.P 140 ; A.W.N. (1898) 212 : 9 Ind. Cas. (N.S.) 799 . 'Order XXI, Rule 90 must be reas with Section 47, C.P.C.' etc., Again in Anantharama Iyer v. Vettath Kuttimalu Kovilamma 34 Ind. Cas. 829 : 30 M.L.J. 611 : 19 M.L.T. 357 : 3 L.W. 504 one must presume at the out-set that Section 47 always applies. If it is coupled with Order XXI, Rule 90 no second appeal lies. That is to say there is no second appeal when a Court approached under Section 47 acts under Order XXI, Rule 90. But when it is so approached and exercises its inherent power under Section 151 there is a second appeal. In Maula Bux v. Raghubar Ganjhu 48 Ind. Cas. 560 : 3 P.L.J. 645 it has been held that in a Court professing to act under Section 47 sets aside a sale, there can be no second appeal because Order XLIII, gives a right of appeal against all orders setting aside sales. But Order XLIII is hardly so comprehensive. It gives a right of appeal against orders under Rule 72 or 92 of Order XXI, but not in cases where the Court is acting under Sections 151 and 47. This finding that an appeal lies practically disposes of respondent's case, for the order of the lower Appellate Court is based on an entire misapprenhension of facts. Even if as alleged in para. 6 of their affidavit in M.P. No. 453 of 1920, the plaintiff and the 7th defendant got an order that the third lot was to be sold last, without bringing the order on M.P. No. 230 of 1917 to the notice of the Court, nevertheless as shown in para. 7, the respondents heard of the fraud and brought the order to the Court's notice. The Court then considered the whole question with everything before it and ordered on 11th August 1920 that the 3rd and not the 2nd lot should be sold last--order on M. P. No. 402 of 1920. This was the order followed at the sale.--(Paragraph 8 of the affidavit and sale list). Therefore, there was no violation of a final order as the learned District Judge was led to suppose.

2. In the circumstances these appeals are allowed with costs throughout. Vakil's fee one set. The order of the District Munsif on C.M.P. No. 453 of 1920 dated the 30th October 1920 is restored.


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