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Nilmoni Singh Vs. Brinda Dasya and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in16Ind.Cas.436
AppellantNilmoni Singh
RespondentBrinda Dasya and ors.
Excerpt:
sale in execution - application to set aside sale made after new code--sale held before new code--second appeal--procedure--no rested right of litigant--civil procedure code (act v of 1908), section 104 sub-section (2)--confirmation of sale--application to set aside sale after confirmation. - .....of the code; the court made an order under rule 92; that order was appealable under order xliii, rule 1, sub-rule (j). consequently, under section 104, sub-section (2), no appeal lies to this court from the order passed in appeal. it has been contended, however, by the learned vakil for the appellant that this cannot be treated as an application under rule 90 of order xxi, because the sale sought to be set aside took place when the code of 1882 was in force and the right to have the sale set aside accrued on that date. in our opinion, there is no substance in this contention. no litigant has a vested right in procedure, and the application, which was presented on the 10th august 1909 after the code of 1909 had come into force, must be deemed to have been presented under the new code......
Judgment:

1. This appeal is directed against an order granting an application for reversal of a sale in execution of a decree for, arrears of rent. The sale took place on the 12th July 1908. On the 10th August 1909 a person claiming to he a mortgagee of the holding applied for reversal of the sale. The Court of first instance dismissed the application on the 28th February 1910. Upon appeal, that order was reversed by the District Judge on the 12th August 1910. We are now invited by the appellant to consider the propriety of the latter order. On behalf of the respondent, a preliminary objection has been taken to the hearing of the appeal on the ground that it is incompetent. In our opinion, this contention must prevail. The application was made under Rule 90 of Order XXI of the Code; the Court made an order under Rule 92; that order was appealable under Order XLIII, Rule 1, Sub-rule (j). Consequently, under Section 104, Sub-section (2), no appeal lies to this Court from the order passed in appeal. It has been contended, however, by the learned Vakil for the appellant that this cannot be treated as an application under Rule 90 of Order XXI, because the sale sought to be set aside took place when the Code of 1882 was in force and the right to have the sale set aside accrued on that date. In our opinion, there is no substance in this contention. No litigant has a vested right in procedure, and the application, which was presented on the 10th August 1909 after the Code of 1909 had come into force, must be deemed to have been presented under the new Code. It has been ingeniously suggested, finally, that the application cannot be deemed an application under Rule 90, because, as a matter of fact, the sale had been confirmed before the application was made, and, consequently, the application ought to be treated as one made under Section 47 of the Code of 1908. In our opinion, this contention also is fallacious. No doubt, when a sale has been confirmed, it becomes absolute under the Code; but it is liable to be challenged by a person interested who is able to satisfy the Court that the sale ought not to have been confirmed either because it was a sale fraudulently held, or because irregularly held and the petitioner brings his case within Section 18 of the Limitation Ant. We are of opinion that an application made under these circumstances falls within the scope of Rule 90, and an order made thereon is an order under Rule 92.

2. The result is that the preliminary objection is allowed and the appeal dismissed with costs. We assess the hearing fee at one gold mohur.


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