Indu Bhusan Sreemani and Others vs Sm. Angurbala Dasi and Others

K.C. Chunder, J.—This Rule was issued at the instance of decree-holders in connection with an execution proceeding. A decree for contribution was passed for three separate amounts against three separate judgment-debtors. One application for execution was filed, in which the three separate judgment-debtors and the three separate amounts were mentioned, praying for execution of the decree. In the sale proclamation there was only a sale proclaimed to be about to be held for one amount namely the total amount of the three sums decreed against the three judgment-debtors and the sale was to be of the entire property in the three separate shares of the three judgment-debtors.

The three judgment-debtors filed an application under Order 21, Rule 90, Civil P. C. for setting aside the sale. This application was filed on 28-11-50 and was registered on 18-1-51 when the record was brought up. Another application was filed on 22-1-51 which states that after the record had been brought up the judgment-debtors had found that they had a further case for setting aside the sale on a ground which comes within Section 47, Civil P. C. They therefore prayed that their application might be amended to one u/s 47 and Order 21, Rule 90 and In the application the ground u/s 47 namely that one execution was obtained regarding three separate decrees be added. The order passed by the learned Munsif was that this application was to be treated as a part of the original application under Order 21, Rule 90. He allowed the prayer.

It is unnecessary for me to state the reasons given by the two courts below for the conclusions to which they arrived at but their concurrent conclusions were first that the application under Order 21, Rule 90 was not barred by limitation, Section 18 being applicable and that as there had been material irregularity and fraud in conducting and publishing the sale, the sale was liable to be set aside under Order 21, Rule 90. Then both the courts proceeded to the other ground u/s 47 and definitely mentioned that this was not a ground to which Order 21, Rule 90 applied. As regards this ground, it may be said that as the period of limitation for an application u/s 47, Civil P. C. is three years there was no bar of limitation as far as that application was concerned. Therefore in spite of the strenuous effort made by Mr. Ghose to the contrary, it must be held that both the courts have proceeded upon Order 21, Rule 90 and Section 47, Civil P. C. Whether the decisions are right or wrong is immaterial in view of the preliminary objection which has been raised by Mr. Prafulla Kumar Roy.

Mr. Roy has urged that in the present case as an appeal was competent a revision does not lie because when there is an alternative remedy by way of a second appeal the revisional jurisdiction cannot be invoked. His contention is that although no second appeal lies from an order passed under Order 21, Rule 90, Civil P. C., yet if the application Is also based upon Section 47 of the Code for which the remedy is a second appeal then as a second appeal does lie it is in the second appeal that the question under Order 21, Rule 90 has to be gone into along with the question u/s 47. He relies upon a Full Bench decision of the patna High Court reported in -- Ramlal Sahu and Others Vs. Mt. Ramia and Another, (A), this particular point being considered by that Court at page 459 of the Report. If I may say so with great respect, I am in full agreement with that decision and so further discussion of the point of law is not necessary. Mr. Roy''s preliminary objection is sustained.

Mr. Ghose has contended that I should convert this revisional application into a second appeal. The power of this Court to do so has been acknowledged in several decisions of this Court and need not be gone into but Mr. Roy points out that the discretion should not be exercised in the present case in view of the deliberate falsehood by the petitioner in connection with his affidavit in the revisional application. In the affidavit in connection with the revisional application it has been deliberately stated on oath that the application u/s 47 was previously dismissed in the presence of the deponent. This has been sworn to by the deponent as true to his knowledge. There could have been no question of admission of this revisional application if such a false statement had not been made initially. According to the petitioner, as the successful party in the application u/s 47 was not called upon to file any appeal but as he was not successful in the application under Order 21, Rule 90 he asked for revision for remedy. He cannot now in the face of his deliberate falsehood be allowed to change his position and the revisional application cannot be converted into a second appeal.

As a revisional application is incompetent, the Rule is discharged with costs.