Authored By : Francis Maclean, Banerjee

Francis Maclean, C.J.

1. I think that a second appeal lies in this case upon theshort ground that the question to be decided is a question between the partiesto the suit relating to the execution of the decree and possibly to thesatisfaction of the decree within the meaning of Section 244 of the Code ofCivil Procedure. I arrive at this conclusion upon the ground that a sale hasbeen ordered, the sale has been effected, and effected for the purpose ofsatisfying the decree. If the sale be held to be bad, that is a question whichaffects the decree-holder, and affects the judgment-debtor, both of whom areparties to the suit. This is a question between the parties to the suit, andthe person claiming here is the judgment-debtor; the decree-holder is made aparty to the appeal and also the auction-purchaser. The case, therefore, iswithin Section 244 of the Code of Civil Procedure, and seems to me to comewithin the principle laid down by the Privy Council in the case of ProsunnoKumar Sanyal v. Kali Das Sanyal (1892) I.L.R. 19 Cal. 683: L. R. 19 I. A. 166.It is conceded that if the case be within Section 244 a second appeal will lie.

2. Then as to the merits. The Judge in the Court belowproceeded upon the ground that there was a decree, a subsisting decree, in asuit for rent. It was admittedly an ex parte decree. Under that ex parte decreethe property was put up for sale, and sold, but one of the parties against whomthe ex parte decree had been made was successful in inducing the Court todischarge that decree under Section 108 of the Code of Civil Procedure, theeffect of which was, according to a recent decision of this Court - MahomedHamidulla v. Tohurennissa Bibi Ante p. 155 ---to discharge the decree, not onlyin favour of the particular applicant, but as against all the defendants to thesuit in which the decree was made. Therefore, when the ex parte decree wasdischarged, no decree in the suit remained. There was no decree existing in thesuit, and if there were no decree, it is difficult, to my mind, to see howthere could be any sale which could be confirmed when the decree under which itwas made had ceased to exist; when the decree was discharged, the sale whichpurported to be made under that decree fell to the ground. The point arisesupon an application to the Munsif to confirm the sale, which be refused to do,upon the ground that he should not confirm a sale under a decree which was notsubsisting. The latter words of Section 316 of the Code of Civil Procedure tendto show that the sale cannot be confirmed, if the decree under which it waseffected has ceased to exist. In my opinion, the Munsif was right an(sic) theSubordinate Judge was wrong, and this appeal must be allowed with(sic)CO

Banerjee, J.

1. I am of the same opinion. Upon the question whether ornot a second appeal lies to this Court, I think it will be enough to say thatthis is not a case provided for by Section 588 of the Code of Civil Procedure,the order complained of not being one of those that that Section contemplates.The order here was an order refusing to confirm a sale, on the ground that thedecree, in execution of which the sale took place, was not subsisting at thedata when the confirmation of the sale was applied for. Then, I think, thequestion that was raised in this case may fairly be considered to be a questionrelating to the execution or satisfaction of the decree within the meaning ofSection 244 of the Code of Civil Procedure. Having regard to the observationsmade by their Lordships of the Privy Council in the case of Prosunno KumarSanyal v. Kali. Das Sanyal (1892) I.L.R. 19 Cal. 683: L. R. 19 I. A. 166. Ithink that the order complained of comes under Section 244, and is therefore adecree as defined by Section 2 of the Code; and so a second appeal lies.

2. Then upon the merits, the appellant contends that theMunsif was right in refusing to confirm the sale, while for the respondent itis said that there is no express provision in the Code directing the Court notto confirm a sale when, at the date when such confirmation is applied for, thedecree in execution of which the sale took place, ceases to be a subsistingdecree. But the provisions of Section 316 of the Code go to show that the Courtought not to confirm a sale, when at the time such confirmation is asked for,the decree had ceased to be a subsisting decree. In the present case, thedecree, which was an ex parte decree, had been set aside by an order underSection 108 of the Code. That being so, and there being no subsisting decree,the first Court was quite right in refusing to confirm the sale; and the Courtof Appeal below was wrong in holding that the first Court was bound to confirmit.

.

Doyamoyi Dasi vs.Sarat Chunder Mojumdar and Ors.(01.06.1897 - CALHC)