1. A preliminary objection is taken that no second appeal lies in this case. The appeal arises out of an application by the judgment-debtor against the decree-holder and auction-purchaser, to have the sale, at which the latter purchased the applicant's property, set aside on the ground, not only of the irregularity mentioned in Section 311 of the Code of Civil Procedure, but also of fraud. The application is undoubtedly entitled under Section 244 of the Code; and it is conceded that if the case fall within the provisions of that section, a second appeal will lie, but it is contended for the respondent that the appellant here being the auction-purchaser and so not a party to the suit, the case is not within the section, and that no second appeal lies. It is said that a second appeal will not lie when the appellant is neither the judgment-debtor nor the decree-holder. I do not think that this distinction is well founded.
2. A Division Bench of this Court has recently decided in the case of Nemai Chand Kanji v. Deno Nath Kanji (1898) 2 C.W.N., 691, that a second appeal will lie, at the instance of the judgment-debtor, and that decision was followed by another Division Bench of this Court in the case of Bhubon Mohun Pal v. Nunda Lal Dey (1899) Ante, p. 324. In both those cases, the - appellant to the High Court was the judgment-debtor.
3. I ought in passing to say that the case of Kinoo Khan v. Kawbiz Mullah,. (1897) 1 C.W.N., cc, was uncontested. We have sent for our judgment in that case, and it is clear that for some reason or other the case was not contested. It must not consequently be regarded as any authority.
4. To appreciate whether a case is, or is not, within Section 244, we must consider what the application was and whether at the time it was made, it was an application under the section. It was an application by the judgment-debtor against the decree-holder and the auction-purchaser, whose purchase had been confirmed, to have the sale set aside. The question was one between the parties to the suit in which the decree was passed, viz., the judgment-debtor and the decree-holder, relating to the execution of the decree, and was, undoubtedly, an application under that section. The circumstance that the auction-purchaser was a party to the application does not make it any the less a case under the section [see the case of Prosunno Kumar Sanyal v. Kali Das Sanyal (1892) I.L.R., 19 Cal., 683: L.R., 19 I.A., 166]. If that be so a second appeal would have lain at the instance of the judgment-debtor or the decree-holder. Why not at the instance of the auction-purchaser, who is the person most directly interested?
5. A narrow construction ought not to be placed on this section: see the case I have just cited. If the contention of the respondent were to prevail, we should have to face the anomaly that both the judgment-debtor and the decree-holder would have a right of second appeal, but that the auction-purchaser, whose sale has been confirmed, and who is really more materially interested in the matter than the decree-holder, would have no such right; whilst if the case were properly within the section, he could not have brought a separate suit in which, if he could have brought it, he would have had an appeal to this Court.
6. The question of a right to a second appeal does not turn upon who may happen to be the appellant, but upon whether or not the case is one within Section 244. If, as has been held, both the judgment-debtor and the decree-holder have such a right, it is difficult to appreciate upon what ground it should be denied to the auction-purchaser, who is equally a party to the proceedings, though not a party to the suit. The judgment-debtor brought the auction purchaser before the Court, and now says that, having so brought him there, he is not to have the same rights qua appeal as either the judgment-debtor or decree-holder, whilst, at the same time, he is to be taken as bound by the order and barred from bringing a separate suit. That does not seem to me to be right.
7. Looking at the principle of the authorities to which I have referred, the contention of the respondent must, in my opinion, fail.
8. Upon the merits the appellant is right. The Subordinate Judge has decided that the respondent was not barred by the Statute of Limitation, and then has proceeded to say off-hand that the sale must be set aside, without considering the evidence upon that question. The question of limitation must be taken as concluded; but the case must go back to the lower Court for a decision upon the evidence whether the sale ought or ought not to be set aside. The costs will abide the result.
9. I am of the same opinion. The appeal arises out of an application for setting aside a sale in execution of a decree on the ground of fraud, and also on the ground of material irregularity in publishing and conducting the sale which has caused substantial injury to the judgment-debtors. The first Court rejected the application on the ground that it was barred by limitation. On appeal by the judgment-debtors, the Lower Appellate Court has reversed the order of the first Court and set aside the sale, holding that the application was saved from being barred by limitation by virtue of the provisions of Section 18 of the Limitation Act, as the decree-holder and the auction-purchaser had kept the judgment-debtors from the knowledge of their right to make this application by means of fraud. Against this order of the Lower Appellate Court the auction-purchaser has preferred this appeal on the ground that the Lower Appellate Court is wrong in setting aside the sale without coming to any finding either that the sale was brought about by fraud, or that it was vitiated by irregularity leading to substantial injury.
10. At the hearing of the appeal, a preliminary objection is taken by the learned Vakil for the respondent that no second appeal lies, as the case cannot come under Section 244 of the Code of Civil Procedure, the question raised not being one between the parties to the suit, but being raised by the auction-purchaser, who was no party to the suit, and in support of this objection the case of Kinoo Khan v. Kawbiz Mullah (1897) 1 C.W.N., cc, is cited.
11. In answer to the objection it is urged by the learned Vakil for the appellant that the question whether a second appeal lies or not will have to be determined, not by considering who the appellant is, but by considering what the nature of the question is that was raised in the Court below and has been determined by the order appealed against. The question involved in the prelim nary objection is not quite free from difficulty. After a careful consideration of the arguments on both sides, I am of opinion that, having regard to the circumstances of this case, the preliminary objection ought to be overruled.
12. With reference to the case cited by the learned Vakil for the respondents, I do not think it necessary for me to say anything in addition to what has been said in the judgment of the learned Chief Justice. The judgment of this Court in that case proceeded upon the footing of there being really no contest as to the applicability of the preliminary objection to the case.
13. Turning now to the reasons urged in support of the objection, I am of opinion that the real question for determination is whether what is appealed against is a decree within the meaning of Section 2 of the Code of Civil Procedure. If it is a decree within the definition given in that section, this second appeal lies. That definition includes an order determining any question mentioned or referred to in Section 244, but not specified in Section 588. Now the question that has been determined in this case by the Lower Appellate Court is that the sale of the judgment-debtor's property is liable to be set aside, it is not clearly stated on what grounds, but evidently, it would seem, on the ground of fraud. That being so, the order appealed against has determined a question which is either mentioned or referred to in Section 244, and which is not specified in Section 588. For the question whether the sale should be set aside or should be allowed to stand, is a question that arose as between the judgment-debtors and the decree-holder, and was a question relating to the execution of the decree, and it is not specified in Section 588, because Clause 16 of Section 588, which is the only portion of the section that can have any bearing upon the present case, contemplates only the setting aside of a sale on the ground of material irregularity in the conduct of the sale leading to substantial injury as provided in Section 312 of the Code of Civil Procedure, and does not apply to an application for setting aside a sale on the ground of fraud.
14. It was argued by the learned Vakil for the respondents that, although that may be so, still as the decree-holder is satisfied with the order of the Court below passed in favour of the judgment-debtors, and as the only person who questions the correctness of that order is the auction-purchaser, who is a third party, the case does not come under Section 244 of the Code of Civil Procedure,
15. But the question in the Court below was one between the parties to the suit, and though one of the parties interested in the determination of that question was the auction-purchaser, a third party, that circumstance could not take the case out of the scope of Section 244. This must be taken to be settled by the decision of the Privy Council in the case of Prosunno Kumar Sanyal v. Kali Das Sanyal (1892) I.L.R., 19 Cal., 688: L.R., 19 I.A., 166. The fact of the decree-holder not appealing, but being apparently satisfied with the order of the Lower Appellate Court, does not make any difference because what we have to consider is whether the order appealed against is one that determines any question mentioned or referred to in Section 244, and not specified in Section 588; and that condition is satisfied, though after the making of the order it might have been accepted by both parties to the suit and the order may be contested only by the auction-purchaser.
16. Perhaps there may arise cases in which there may be no contest between the parties to the suit from the beginning, and in such cases it would be difficult to say that an appeal would lie at the instance of the auction-purchaser; but that would be so, not because the auction-purchaser was the appellant, but because the question from the beginning was not one arising between the parties to the suit within the meaning of Section 244 of the Code. That, however, is not the case here. The view I take is in accordance with the decision of this Court in the cases of Nemai Chand Kanji v. Dino Nath Kanji (1898) 2 C.W.N., 691; and Bhuban Mohan Pal v. Nunda Lal Dey (1899) Ante, p. 324.
17. On the merits of the appeal, it is clear that the appellant's contention ought to succeed. For all that the learned officiating Subordinate Judge has found is that as in consequence of the fraudulent conduct of the decree-holder and the auction-purchaser, the petitioners were kept from the knowledge of their right to have the sale set aside, the application is not barred by limitation. That may be quite true, and by reason of the fraudulent conduct of the decree-holder and the auction-purchaser, the applicant may be entitled to the extension of time provided for in Section 18 of the Limitation Act; and yet the sale may not be vitiated either by fraud or by any material irregularity which has led to substantial injury. The case must, therefore, go back to the Lower Appellate Court for the determination of the question whether the sale is so vitiated or not.