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Banshibadan Mandal Vs. Chhaunat Bibi Alias Chhannu Bibi and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in90Ind.Cas.228
AppellantBanshibadan Mandal
RespondentChhaunat Bibi Alias Chhannu Bibi and ors.
Cases ReferredRaghubar Dayal Sukul v. Jadu Nandan Missir
Excerpt:
civil procedure code (act v of 1908), sections 2 clause (2)(a), 47 and 104(2), order xxi, rules 89 and 92, order xliii, rule 1(j) - second, appeal from appellate, order setting aside execution sale. - .....judge of 24-parganahs.2. a preliminary objection is taken by the respondents that no second appeal lies. we think that this contention should prevail. the order passed after the deposit made under order xxi, rule 89 is an order under rule 92. an appeal lies from an order passed under that rule under order xliii, rule 1(j), c.p.c. but no second appeal lies from the order passed upon first appeal, under section 104, clause (2). it is argued by the learned advocate or the appellant that as the auction-purchaser was the decree-holder, the matter is covered by section 47; and under section 2, c.p.c., the order passed under section 47 is a decree and is appealable. we think that this contention is not found. section 47 covers matters arising between parties to the suit relating to.....
Judgment:

1. This is an appeal by the auction-purchaser in execution of a money decree. The respondents deposited the amount for which the property was sold and purchased by the appellant; but it was contended the money deposited was short by 12-annas. Both the Courts below have held that this was due to a bona fide mistake and set aside the sale. The second appeal is from the appellate order of the District Judge of 24-Parganahs.

2. A preliminary objection is taken by the respondents that no second appeal lies. We think that this contention should prevail. The order passed after the deposit made under Order XXI, Rule 89 is an order under Rule 92. An appeal lies from an order passed under that rule under Order XLIII, Rule 1(j), C.P.C. But no second appeal lies from the order passed upon first appeal, under Section 104, Clause (2). It is argued by the learned Advocate or the appellant that as the auction-purchaser was the decree-holder, the matter is covered by Section 47; and under Section 2, C.P.C., the order passed under Section 47 is a decree and is appealable. We think that this contention is not found. Section 47 covers matters arising between parties to the suit relating to execution, discharge and satisfaction of the decree. An order passed under that section is a decree as defined in Section 2, C.P.C. But Clause (a) of that section is excludes an order which is an adjudication from which an appeal lies as an appeal from order. All orders, therefore, between decree-holder and judgment-debtor under Section 47 are not decrees and appealable as such. In the present case an appeal lies as an appeal from order under Order XLIII, Rule 1(j). A second appeal, therefore, does not;, lie. We are fortified in our view by the decision in the case of Asimuddi Sheikh v. Sundari Bibee 10 Ind. Cas. 345 : 38 C. 339 : 15 C.W.N. 844 : 14 C.L.J. 224. The appellant has referred to the case of Raghubar Dayal Sukul v. Jadu Nandan Missir 13 Ind. Cas. 305 : 15 C.L.J. 89 : 16 C.W.N. 736 which was, however, a case under the Bengal Tenancy Act. In this view we hold that a second appeal does not lie and this appeal is dismissed with costs two gold mohurs.


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