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Sita Nath Roy Vs. Hare Krishna Sahu and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in6Ind.Cas.573
AppellantSita Nath Roy
RespondentHare Krishna Sahu and ors.
Excerpt:
civil procedure code (act v of 190s), sections 47, 101 clause (i), order xxi, rules. 89, 92, order xliii, rule 1 (j)--deposit by judgment-debtor--order setting aside or refusing to set aside sale--appeal--second appeal. - .....objection is a sound one. there is no provision of the law which enables the judgment-debtor to deposit money to have a sale set aside except rule 89, order xxi, of the present code of civil procedure, and it is significant that that rule takes the place of the special section of the former code of civil procedure, section 310a, which had to be added to the civil procedure code, because before it was added there was no provision whatever for the judgment-debtor being able to set aside the sale by paying in the money due. it is argued before us that such deposit comes within the purview of section 47 of the code, and it is pointed out that while section 310a of the old code was in force, there were certain rulings of this court and of the allahabad court where relief was granted under.....
Judgment:

1. A preliminary objection is taken in this case that no second appeal lies. We think that the objection is a sound one. There is no provision of the law which enables the judgment-debtor to deposit money to have a sale set aside except Rule 89, Order XXI, of the present Code of Civil Procedure, and it is significant that that Rule takes the place of the special section of the former Code of Civil Procedure, Section 310A, which had to be added to the Civil Procedure Code, because before it was added there was no provision whatever for the judgment-debtor being able to set aside the sale by paying in the money due. It is argued before us that such deposit comes within the purview of Section 47 of the Code, and it is pointed out that while Section 310A of the old Code was in force, there were certain rulings of this Court and of the Allahabad Court where relief was granted under Section 244 of the old Code for this reason that no appeal whatever lay against an order under Section 310A. In the new Act an appeal has been allowed against an order under Rule 92 setting aside or refusing to set aside a sale on deposit of the money by the judgment-debtor; and that appeal is allowed by Order XLIII, Rule 1 (j). But by Section 104 Clause (i), it is laid down that there shall be no second appeal from any order made under Rules from which no appeal is expressly allowed by the Rules.

2. The only question, therefore, is, was this application by the judgment-debtor, as originally made, an application under Rule 89, Order XXI, or was it a proceeding under Section 47? The question only requires to be stated to furnish its own answer. Obviously a deposit of this nature can only be made under Rule 89. The order lefusing to receive it and to set aside the sale is made under Rule 92 and an appeal lies to the District Judge under Older XLIII, Rule 1 (j) and no second appeal lies to this Court.

3. The appeal therefore, mast be dismissed with costs. We assess the hearing fee at two gold mohurs.


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