Rajendra Nath Roy vs Ram Charn Sinha

This is an appeal from an order of the District Judge upholding the order of the Subordinate Judge. The order makes the Appellant liable for the deficiency which had happened on the re-sale of the property by reason of the Appellant''s default. It seems that the property was put up to sale and knocked down to the Appellant at the highest bidder. He failed to make good the deposit required by sec. 306, and the property was then, on the same date, resold for a smaller sum. The difference in the price realized at the two sales was certified by the Nazir to the Court and the Court, on the application of the decree-holder, held the Appellant to be liable for the deficiency.

It is contended on behalf of the Respondent that the order appealed against not being an appealable order or a decree, no appeal lies, and that, even if an appeal did lie from an original order, there is in this case no right of second appeal.

In the case of Baij Nath Sahai v. Mohip Narain Singh I. L. R. 16 Cal. 535 it was held that an appeal did lie and on a consideration of that case and other cases bearing on that point we held, in appeal from Appellate Order No. 4 of 1897 decided on the 17th June 1897 2 C. W. N. 408, that there was an appeal from an order making a person liable for the deficiency in price under sec. 293. It is argued, however, that even if an appeal did lie from the original order, there is here no right of second appeal, as that right is taken away by sec. 586. I am not prepared to say that sec. 586 takes away the right of appeal in the present case conceding that the value of the amount to be recovered is less than Rs. 500. That section could, at the best I think, only be applied by analogy. But the question whether a second appeal does or does not lie is not a matter of very much importance, because, I think, the Appellant has not shown any ground on which we can interfere with the order. The argument is that the Appellant is not liable under sec. 293 because there was no re-sale of the properly within the meaning of that section, and that the re-sale, if any, was not a sale in conformity with the provisions of sec. 309. It was held in the case of Ramdhani Sahai v. Raj Rani Koer I. L. R. 7 Cal. 337 that sec. 293 extended to re-sales held under sees. 306 and 308, and that there was no substantial difference between the words "resold" and "re-sale" which occur in sees. 308 and 309 and the words " put up again and sold" which occur in sec. 306. I think that that view is correct, and that the first ground on which we are invited to interfere fails.

The second ground, I think, also fails, because sec. 309 does not, in my opinion, apply to a case in which the property is put up again and sold forthwith under the provisions of sec. 306. If the Appellant chose to bid for this properly and allowed it to be knocked down to him without his having the means to make good the deposit required by law, it seems to me that he has no reason to complain if he is made liable for the deficiency in price, and if the case comes, as I consider it does come, under sec, 293, he is clearly liable. It seems to me that there is no ground on which we can interfere with the order of the District Judge. The appeal is dismissed with costs, 2 gold mohurs.

Ameer Ali, J.

I agree.