Kachu Ravji Mindhe Vanjari vs Trimbak Khemchand Gujarathi

Shah, J.—It is urged as a preliminary objection to this appeal that no second appeal lies to this Court. The original application out of which this appeal has arisen was made under rule 89 of Order XXI by the judgment-debtor. That application was rejected. There was an appeal from that order to the District Court of Nasik and that appeal was dismissed. From the order dismissing the appeal a second appeal was preferred to this Court; and the point now raised is that such a second appeal is not competent. It is clear that the appeal to the District Court was an appeal under Order XLIII, Rule 1, Clause (j), and that u/s 104, Sub-section 2, of the Code of Civil Procedure, no appeal can lie from any order passed in appeal under the section. The only ground upon which it is said that the present case falls outside the scope of Section 104, Sub-section 2, is that the auction-purchaser happens to be the decree-holder and that the order on the application of the judgment-debtor is an order relating to the execution of the decree between the parties u/s 47. We do not think, however, that the accident of the auction-purchaser being the decree-holder makes any difference in the effect of the provisions of Section 104, Sub-section 2. Whether the auction purchaser be the decree-holder or a third person, the result is the same so far as the appealability of the order is concerned.

The appeal must, therefore, be dismissed with costs on the ground that no second appeal lies to this Court.