Meyyappan Servai vs Sellappa Chettiar and Others

Venkatasubba Rao, J.—A preliminary objection has bean taken that this Letters Patent appeal does not lie. The decision depends upon the

question:

Was it a second appeal or a civil revision petition that was disposed of by the judgment of Waller, J.,

If the party aggrieved had a right of second appeal, we must hold that the learned Judge disposed of that appeal by his judgment. The facts are

these: The judgment-debtor applied to the District Munsiff''s Court for the setting aside of a sale. He urged various grounds, one of them being that

he had no notice under Order 21, Rule 66, Civil P.C., of the settling of the proclamation. It has been held that an application of that kind falls u/s

47 and not under Order 21, Rule 90 and that a second appeal is therefore open to the party: see Neelu Neithiar v. Subramania, Moothan [1920]

11 M.L.W. 59 and (Kamana) Venkataswami Vs. Godavarti Nagayya, . The District Munsiff set aside the sale and the District Judge confirmed

the order of the Munsiff. Besides two second appeals (one by the decree-holder and one by the purchaser) a civil revision petition was also filed.

Waller, J., disposed of them by a single order. If initially the application of the judgment-debtor was one that fell within Section 47, second appeals

were competent and it must be deemed that Waller'' J''s., judgment disposed of those second appeals. If that be so a Letters Patent appeal lies

and the preliminary objection fails.

Now, coming to the merits, the question is one of construction of Waller, J.''s order calling for a finding. Did he or did not sot aside the finding of

Mr. Stodart, the District Judge, that the auction purchaser was not a party to the fraud? If the District Judge''s observation amounted to a finding,

we must take it that Waller, J., intended to vacate it. If it did not, there was no need to set it aside.

Then, let us see what happened when the case was sent back to the lower Court. Mr. Narayana Pantulu gave no finding in regard to the fraud

alleged on the part of the auction purchaser. Waller, J., construes his order calling for a finding as one which required the lower Court to deal with

this question also. We are prepared to accept the learned Judge''s construction of his own order. Now in the absence of a finding in regard to the

auction-purchaser''s participation in the fraud, the learned Judge was perfectly entitled to determine that issue as one of fact u/s 103, Civil P.C. In

this view, it is conceded, no further question arises and the appeal is dismissed with costs.