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

Calcutta High Court
Bhagbut Lall vs Narku Roy on 2 April, 1894
Equivalent citations: (1894) ILR 21 Cal 789
Author: A A Rampini
Bench: A Ali, Rampini


Ameer Ali and Rampini, JJ.

1. The question involved in this appeal is extremely simple, although a considerable time has been occupied in its argument. The decree-holder appears to have purchased the property belonging to his judgment-debtor in execution of his decree. The judgment-debtor applied to have the sale set aside on various grounds-amongst others on the ground that the decree-holder had purchased the property without obtaining the permission of the Court. The Munsif before whom this application was made rejected it. On appeal the District Judge has, on the ground that the purchase was made by the decree-holder without the permission of the Court, set aside the sale. So far as the question of permission is concerned, whether the permission was obtained or not, the finding of the learned Judge is one of fact into which we cannot enter. The decree-holder has appealed to this Court, and an objection has been taken on behalf of the respondent that no second appeal lies from the order of the District Judge under Section 294. Mr. Gregory who appears for the appellant has argued that the question between the parties falls under s 244, and therefore, independently of any provisions in the Code and-irrespective of Section 294, he has a right to a second appeal. Now, Section 294 provides that no holder of a decree, in execution of which property is sold, shall, without the express permission of the Court, bid for or purchase the property, and Clause 3 of that section provides that when a decree-holder purchases, by himself or through another person, without such permission, the Court may, if it thinks fit, on the application of the judgment-debtor or any other person interested in the sale, by order set aside the sale. Section 588, Clause 16, gives an appeal from orders under Section 294, and the last clause of Section 588 provides that an order passed in appeal under this section shall be final. Therefore, unless the matter comes under any other provision of the Code, it is clear that there is only one appeal and no more. Section 244, referred to as justifying the second appeal, declares that all questions arising between the parties to a suit in execution should be dealt with by orders of the Court executing the decree and not by a separate suit, and the case of Viraraghava v. Venkata I.L.R. 16 Mad. 287, to which Mr. Gregory has referred, shows that in a case when an order is made under Section 294 the judgment-debtor cannot proceed by separate suit, because the matter falls under Section 244; but that case does not show that Section 244 enlarges the right of appeal, which is restricted by Section 588. It is clear that Section 588, Clause 16, is restrictive in its character, and gives one appeal only to the parties aggrieved or dissatisfied with any order confirming, setting aside or refusing to set aside a sale of immoveable property. To suggest that because Section 2-14 precludes a right of suit it enlarges the right of appeal is untenable and no authority is shown for it.

2. As at present advised we think that no second appeal lies from this order, and we therefore dismiss the appeal with costs.

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