1. The questions raised before us are whether a second appeal lies to this Court and whether the appellant has locus standi to make the present application.
2. The judgment of the lower appellate Court has proceeded mainly, if not wholly, on the question whether the appellant had a locus standi to come in under Sections 311 and 244, C.P.C. The application was dealt with at length by the Court of first instance and that Court allowed the application and set aside the sale complained of The Munsif did not say very distinctly that the conduct of the landlord, and whose instance the sale was held on the 14th March 1906, was fraudulent, but we gather that all the essentials both under Sections 311 and 244 had been made out in the opinion of the Munsif who concluded his judgment by observing that the sale is vitiated with fraud.' Now, the lower appellate Court in dealing with the merits has dealt with a hypothetical case only. The District Judge observes: 'If the findings of fact arrived at by the Munsif be correct, they amount only to an irregularity and not to fraud, though the Munsif towards the end of his judgment says that the proceedings were vitiated by fraud, on the findings themselves the case could not be placed higher than under Section 311.'
3. It appears to us that the District Judge has fallen into error in not accepting the decision of this Court which was brought to his notice, namely, the decision in that case of Azgar Ali v. Asaboddin Kazi 9 C.W.N. 134. That case was followed in Gopi Nath Chattopadhya v. Sajani Kanta Singh 10 C.W.N. 240 where the decree-holder was also the auction-purchaser. But apart from these two cases, there is the decision of the Full Bench in Ishan Chunder. Sirkar v. Beni Madhub Sirkar 24 C. 62; 1 C W.N. 36 and we invite the attention of the District Judge to the observations at page 73 of the report.
4. The appellant before us purchased on the 26th August 1896 in execution of a decree against an unregistered transferee of the occupancy holding in question. The unregistered transferee, as also, the execution-purchaser became bound by the subsequent rent decree in execution of which the holding was sold. Being bound by that decree he must on the authority of the Full Bench, be held to be a representative of the recorded tenant, against whom the rent decree was obtained, and, in that view of the matter, he was entitled to come in under Section 244 and apply to have the sale set aside. He placed his case, no doubt, partly under Section 311; but in such a case the full force of his allegations would concentrate on the case of fraud which he prosecuted with reference to Section 244 of the Code. Upon this point, the District Judge has not given his decision.
5. We think that we should not deal with the case ourselves, as to do so would involve a consideration of the evidence and we are not entitled to find facts sitting, as we are, in second appeal. Even if fraud be regarded as a question of law, the parties are entitled to an express decision in the lower appellate Court upon the evidence on which the Munsif recorded a distinct finding. We do not think it would be in accordance with the practice of this Court for us to examine the findings of the Court of the first instance and, so to speak, ignore the existence of the Court of first appeal. The procedure we follow was also followed in the authorities which are here cited.
6. We, therefore, allow this appeal and send back the case with this intimation of our opinion that the case must be tried out on the merits by the District Judge.
7. Costs will abide the result.
8. We assess the costs in this Court as 3 gold mohurs.
9. Let the record be sent down at once.