Subh Narain Lall vs Goroke Prosad and Ram Kumar Lall, George William Llewhellin by His Manager and Muktear G.R. Somers and Maharaja Luchmeswar Singh, Bahadur

This purports to he an appeal against an order of the Subordinate Judge of Mozufferpore, dated the 31st August 1897, rejecting an appeal made to him from an order passed under the provisions of sec. 174 of the Bengal Tenancy Act. The Appellant in this case was the auction-purchaser at a sale held in execution of a decree for arrears of rent. The Respondent is the assignee of the judgment-debtor. The sale was set aside under the provisions of sec. 174 of the Bengal Tenancy Act at the instance of the judgment-debtor. The decree-holder then appealed to the Subordinate Judge against the order of the Munsif setting aside the sale. The Subordinate Judge dismissed the appeal on two grounds: first, that no appeal lay, and, secondly, that there were no merits in the case. The auction-purchaser now endeavours to present a second appeal to this Court, and is met by the preliminary objection that no second appeal lies. In support of the preliminary objection the case of Kishori Mohun, Roy v. Sarodamoni Dasi 1 C.W.N. 30 (1890) has been cited, according to which ruling no appeal lies from an order under sec. 174 of the Bengal Tenancy Act.

We think that this objection must prevail. The learned pleader for the Appellant contends that under the provisions of sec. 647 of the (''ode of Civil Procedure read with sec. 153 of the Bengal Tenancy Act a second appeal will lie. But we are unable to agree with this contention. A proceeding under sec. 174 of the Bengal Tenancy Act does not appear to us to be a proceeding for the execution of a decree. It may be a proceeding relating to the execution of a decree; but it certainly does not come within the explanation to sec. 647 of the CPC as being an application for the execution of a decree.

For these reasons we dismiss this appeal with costs. We assess the hearing fee at two gold mohurs.