1. This is a second appeal against an order under Section 312, Code of Civil Procedure, setting aside a sale.
2. A preliminary objection has been taken that no second appeal lies.
3. From the final clause of Section 588 this would appear to be correct,and the cases of Nana Kumar Roy v. Golam Chunder Dey (1891) I.L.R. 18 Cal. 422 Aubhoya Dassi v. Pudmo Loohun Mondol (1895) I.L.R. 29 Cal. 802 and Daivanayagan Pillai v.Bangasami Ayyar (1894) I.L.R. 19 Mai 29 support this view.
3. On the other hand, on behalf of the appellant, it has been contended, with the view of bringing this case within the rulings of this Court in the oases of Bhubon Mohun Pal v. Nunda Lai Dey (1899) I.L.R. 26 Cal. 324 Nemai Chand Kanji v. Deno Nath Kanji (1898) 2 C.W.N. 691 and Rojoni Kant Bagchi v. Hossain Uddin Ahmed (1899) 4 C.W.N. 538 that the respondent judgment-debtor made an allegation of fraud against the decree-holder in his petition for the setting aside of the sale, and therefore, that the order passed was one under Section 244, and a decree, and accordingly a second appeal does lie.
4. It appears that an allegation of fraud was made in the judgment-debtor's application for the setting aside of the sale; but, as the Munsif says, no attempt was made to prove it. The application was, therefore, dealt with both before the Munsif and the Judge as one under Section 311. In these circumstances we consider that no second appeal lies. The order of neither of the Lower Courts disposes of any other question than questions of irregularity in the publishing or conducting of the sale. Hence it cannot be an order under Section 244 (c), or a decree, and so there can be no second appeal. It cannot be, we think, that an applicant under Section 311, by making a mere allegation of fraud in his petition without attempting in any way to substantiate his allegation, can give a right of second appeal in the case, which would not otherwise have arisen.
5. The learned Pleader for the appellant, however, relies on a passage in the judgment in Rojoni Kant Bagchi v. Hossain Uddin Ahmed (1899) 4 C.W.N. 538 in which it is said: 'We think it may be gathered from these decisions that where a judgment-debtor applies to have an execution sale set aside, alleging circumstances which, if found in his favour, would amount to fraud on the part of the decree-holder or the auction-purchaser, the case comes within Section 244.' As to this we would say, firstly, that we do not think the learned Judges who decided that case meant to lay down that a mere allegation of fraud without an attempt to prove it would be sufficient to bring the case under Section 244. They must have meant that allegations of fraud supported by evidence of some sort would do so. Secondly, if this be what they meant, then it is not supported by the cases referred to by them, in all of which an endeavour was made to prove the acts of fraud alleged. Thirdly, the observation is at best but an obiter dictum, for, in the case in which it occurs, it was held that the act alleged to be fradulent did not amount to fraud, and that consequently no second appeal lay.
6. This appeal is accordingly dismissed with costs. The order in this case also governs appeal from Order No. 23 of 1900.