Akshia Pillai vs Govindarajulu Chetti and Others

Jackson, J.—Appeal against an appellate order setting aside a Court sale.

The Principal District Munsif of Chingleput in C.M.P. No. 453 of 1920 dismissed the application of the present respondents under Order 21,

Rule 90, holding that there was no evidence of fraud or irregularity. On appeal the District Judge found that the judgment-debtors had no cause for

complaint on the score that lots 1 and 2 were sold for a low price, nor were they adversely affected as regards the remaining lot 3. There was

therefore no substantial injury. He records no finding as to fraud apparently agreeing with the lower Court that there was no proof. He thus

practically confirms the order under Order 21, Rule 90. But in his sixth paragraph he finds that the lower Court''s orders on M.P. No. 230 of 1917

were not brought to the notice of the Court which directed the sale and inasmuch as the sale was in contravention of the orders under M.P. No.

230 of 1917, which were final, the sale must be set aside. This is to break fresh ground. The judgment-debtors cited the failure to bring the

previous petition to the lower Court''s notice as evidence of plaintiff''s fraud - Affidavit in M.P. No. 453 of 1920, paragraph 6. But the District

Judge does not find that there was fraud; he merely finds that the sale was in contravention of the orders under M.P. No. 230 of 1917. There is no

objection to the Judge when the sale was before him upon appeal considering its validity from every point of view of. Palaniappa Udayan v.

Arumuga Pandaram (1916) 1 MWN 256 : 33 IC 692. and exercising his inherent jurisdiction. The ruling that a Court must confine itself to Section

311 of the old Code, Harbans Lal v. Kundan Lal ILR (1898) A 140. was before anything like Section 151 was embodied in the statute. And if the

Judge decides to set the sale aside not on the ground of material irregularity occasioning substantial injury, but merely on the ground that an order

has been violated, he cannot be said to be acting under Order 21, Rule 90. He must be acting under his inherent powers. That being so an appeal

will lie to this Court, although no second appeal lies from an order under Order 21, Rule 90, Asimaddi Sheik v. Sundari Bibi ILR (1911) C 339.

The action of the District Judge is very similar to that discussed at page 610 by Tyabji, J., in Muthiah Chettiar and Another Vs. Bava Sahib and

Others, . Oldfield, J., in the same case page 606 quotes the appellant as urging that remedies lie alternatively under Order 21, Rule 90, or Section

This argues some confusion. If the parties disputing the sale are parties to the suit they approach the Court u/s 47, which decides the forum.

The Court then proceeds according to its statutory powers. It may exercise its inherent jurisdiction u/s 151, or it may exercise its power under

Order 21, Rule 90. These are really the alternative provisions and this is presumably what is meant in Palaniappa Udayar v. Arumuga Pandaram

(1916) 1 MWN 256 : 33 IndCas 692. "" Order 21, Rule 90, must be read with Section 47, Civil Procedure Code,"" etc. Again in V.G.

Anantharama Iyer Vs. Vettath Kuttimalu Kovilamma alias Nangachi Kovilamma and Another, . ""one must presume at the outset that Section 47

always applies."" If it is coupled with Order 21, Rule 90, no second appeal lies. That is to say there is no second appeal when a Court approached

u/s 47 acts under Order 21, Rule 90. But when it is so approached and exercises its inherent power u/s 151 there is a second appeal. In Sheik

Maula Bux v. Raghubar Ganjhu (1918) 3 Pat LJ 645 it has been held that if a Court professing to act u/s 47 sets aside a sale there can be no

second appeal because Order 43 gives a right of appeal against all orders setting aside sales. But Order 43 is hardly so comprehensive. It gives a

right of appeal against orders under Rule 72, or 92 of Order 21, but not in cases where the Court is acting under Sections 151 and 47. This finding

that an appeal lies practically disposes of respondent''s case for the order of the Lower Appellate Court is based on an entire misapprehension of

facts. Even if as alleged in para. 6 of their affidavit in M.P. No. 453 of 1920 the plaintiff and the 7th defendant got'' an order that the 3rd lot was to

be sold last, without bringing the order on M.P. No. 230 of 1917 to the notice of the Court, nevertheless as shown in para. 7, the respondents

heard of the fraud and brought the order to the Court''s notice. The Court then considered the whole question with everything before it and

ordered on nth August, 1920, that the 3rd and not the 2nd lot should be sold last--Order on M.P. No. 402 of 1920. This was the order followed

at the sale. (Para. 8 of the affidavit and sale list.) Therefore there was no violation of a final order as the learned District Judge was led to suppose.

In the circumstances these appeals are allowed with costs throughout. Vakils'' fees one set. The order of the District Munsif on C.M.P. No. 453

of 1920, dated 30th October, 1920 is restored.