Posted On by &filed under Calcutta High Court, High Court.

Calcutta High Court
Aswini Kumar Dutta And Ors. vs Raj Kumar And Ors. on 27 May, 1927
Equivalent citations: AIR 1927 Cal 845, 103 Ind Cas 705


1. This is an appeal from an order of the Subordinate Judge of Tippra reversing an order of the Munsif of Commilla. A preliminary objection is taken that no appeal lies. The order was made upon an application to set aside a sale upon the grounds of material irregularity and fraud, under Order 21, Rule 90, Civil P.C. It is conceded by the learned vakil on behalf of the appellants that no second appeal lies from an order made under Order 21, Rule 92, but he contends that a second appeal lies under Section 153, Bengal Tenancy Act. With respect to this contention, however, he further concedes that unless he can succeed upon the allegation of fraud this appeal is incompetent under Section 153. The lower appellate Court has found that there was no fraud or material-irregularity in the conduct of the sale, and that the applicants sustained no substantial injury in consequence of any such fraud or irregularity. The finding of the lower appellate Court upon the issue of fact as to whether there was fraud is not to be questioned in second appeal. The learned vakil for the applicant contended that in every case in which an appeal will lie only if fraud is established, it is open to a litigant to avail himself of the rights of appeal if in the original application in respect of which the appeal arises an allegation of fraud has been made. In our opinion in such a case an appeal will not lie unless the allegation of fraud has been established, and will not lie merely because, in addition to other objections, what proves to be an unfounded allegation of fraud is made. If the contention of the appellant were held to be the law many rules of procedure could and would be evaded by the simple expedient of inserting in an application an utterly frivolous and unfounded allegation of fraud. In our opinion, the preliminary objection prevails, and this appeal must be dismissed with costs, the hearing-fee being assessed at one gold mohur.

2. There is a further application on the file. In the circumstances the learned vakil does not propose to proceed with it. It is accordingly rejected.

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