1. This is an appeal against an appellate order confirming an order of refusal to set aside a sale in execution on the ground of material irregularity and fraud.
2. It is objected in limine that such an appeal is incompetent now, and we think that the objection must prevail.
3. It cannot be, nor is it contended, that under the Code of 1808, which came into force on the 1st January 1909, a second appeal lies in a case of this kind. It was otherwise, no doubt, when sales were attacked on the ground of fraud under the Code of 1882; but Order XXI, Rule 90 of the present Code has placed fraud and material irregularity on the same footing in this connection, and a reference to Order XXI, Rule 92, Order XLIII, Rule 1 (j), and Section 104(2) places it beyond controversy that one appeal and one only, is now given.
4. But it is argued that, as the sale with which we are here concerned, was held on the 14th November 1908, and the application to set it aside was made on the 12th December following, both Tinder the old Code, the right of second appeal is saved by Section 154 of the new Code, which provides that 'nothing in this Code shall affect any present right of appeal which shall have accrued to any party at its commencement.' The question, then, is whether the right to prefer a second appeal in this case had 'accrued' to the appellant on the 1st January, 1909. We think it clear that it had not By no stretch of language can a right to appeal against au order be said to have grown into a present right before any order has been passed; much less can a right of second appeal be held to have accrued before an adverse decision has been arrived at by even the Court of first instance. This was, we find, the view taken by another Bench in a precisely similar case, Bhadreswar Goloi v. Bishnu Charan Sen 8 Ind. Cas. 3 to which the learned Vakil for the appellant has very frankly and courteously drawn our attention. The appeal must, therefore, be dismissed with costs. We assess the hearing fee at five gold mohurs, three to be payable to the first respondent and two to the other.
5. There remains the suggestion that we should, as we no doubt could, treat the appeal as an application for revision and deal with it on that footing. The lower Courts have, it is urged, disposed of the case on the ground of material irregularity alone, and, by refusing to go into the question of fraud and collusion, failed to exercise jurisdiction. It is evident, however, that this point was not taken before the lower Appellate Court; and, further, we find that the allegations of fraud made by the appellant consisted in little, if anything, more than the repeated use of the word 'fraudulently'. Such general allegations unaccompanied by particulars are, in the words of Lord Selborne, L.C., in Wallingford v. The Mutual Society (1880) 5 A.C. 685 at p. 697 : 50 L.J.Q.B. 49 : 43 L.T. 258 : 26 W.R. 81 'insufficient even to amount to an averment of fraud of which any Court ought to take notice.' We decline, therefore, to interfere.