W. Comer Petheram, C.J. and Beverley, J.
1. This is a second appeal from an order setting aside a sale in execution of a decree.
2. The order in question purports to have been made under Section 312 of the Code, and a preliminary objection has been raised that, under the provisions of the last paragraph of Section 588, no second appeal will lie. This was decided by a Full Bench in the case of Nana Kumar Roy v. Golam Chunder Dey I.L.R. 18 Cal. 422. The learned pleader for the appellant accordingly asks us to treat the appeal as an application under Section 622 of the Code, on the ground that the lower Courts had no jurisdiction to make and affirm an order under Section 312, inasmuch as the petitioner was not a person who was competent to apply to have the sale set aside under the provisions of Section 311. In support of this contention, the learned pleader relies on the decision of the Full Bench in the case of Asmutunnissa Begum v. Ashruff Ali I.L.R. 15 Cal. 488.
3. The facts appear to be briefly as follows : The decree, in execution of which the tenure was sold, was a decree for arrears of the rent of the tenure itself, and was made on 25th June 1892. On 20th March 1893, the judgment-debtor sold the tenure to the petitioner. On 21st July 1893, application was made by the decree-holder to execute the decree, and on 27th November the tenure was put up to sale and purchased by the decree-holder himself.
4. The tenure itself having been put up to sale in execution of a decree for arrears of the rent thereof, we are of opinion that the Full Bench case of Asmutunnissa Begum v. Ashruff Ali I.L.R. 15 Cal. 488, which is relied on, will not apply, and that the petitioner's property having been sold, he was a person entitled to apply to have the sale set aside under Section 311 of the Code-Panye, Chunder Sircar v. Hur Chunder Chowdhry I.L.R. 10 Cal. 496. That being so, the lower Courts had jurisdiction to entertain the application under Section 311.
5. Nor, we may add, does the appellant appear to us to be entitled to any relief upon the merits. It appears that, about a month after his purchase, the petitioner executed a kabuliat for this tenure in favour of the appellant, as well as a kisibandi for Rs. 270 on account of arrear rents, and it is alleged that the petitioner, after the sale, paid to the appellant Rs. 95 out of the first instalment due in February 1894. The kistbandi is silent as to the decree, but there can be little doubt that it was intended to supersede it. It is found by both the lower Courts that the sale was a fraudulent one, and carried out without the knowledge of the petitioner. Under these circumstances, we think there is no ground for our interference under Section 622. The appeal is dismissed with costs.