Kondine Kamaya and Another vs Kovidena Ramamma and Others

A preliminary objection has been raised that no second appeal lies. We are inclined to think that this is a good objection, and that the failure to give the petitioners notice before the sale though they had attained majority between the date of decree, and the date of execution is a mere irregularity in publishing the sale which would bring the application within Rule 90.

But it is unnecessary to decide this point as, assuming that the application can be treated as one u/s 47, it was clearly out of time under Article 106 of the Limitation Act, hot having been made within one month of the sale.

For the proposition that Art.- 166 and not Article 181 will apply even to applications which fall u/s 47, there is ample authority in Muthiah Chetiiar v. Bawa Sahib 26 Ind. Cas. 46; Thekkedath Neelu Neithiar v. Subramania Moothan 53 Ind. Cas. 809: 11 L.W. 59; Satish Chandra v. Nishi Chandra Dutta 54 Ind. Cas. 431and Pasumarti Payidanna v. Ganti Latishminarasamma 29 Ind. Cas. 314.

The cases in Shivbai Baby a Swami v. Yesu Cheoo Nayakin 48 Ind. Cas. 130, in which Article 181 was applied, can be distinguished. The first was a case where an ex parte decree had first to be set aside before the applicant had any locus standi to set aside the sale in execution of that decree, arid the Patna case was one of fraud and not illegality or irregularity.

The civil miscellaneous second appeal is dismissed with costs.