Sri Kallalagar Devasthanam vs M. Baskaram Pillai and Another

Wadsworth, J.—This appeal arises out of an application u/s 23 of Madras Act IV of 1938. The sale in question was in execution of a

decree under the Madras Estates Land Act and the principal contention of the appellant in the trial Court was that Section 23 does not apply to

sales under the Estates Land Act. That question has been settled in Polisetti Venkataratnam Vs. Dhulipudi Surya Rao and Others, . and it must

now be held that Section 23 applies to sales under any decree of Court. Before going into the merits of the appellant''s case, it has to be decided

whether this Court can, on this appeal, go into the question of the correctness of the trial Court''s order. The trial Court''s order was taken up in

appeal to the District Judge. The District Judge, without considering the competence of the appeal,. dismissed the appeal on the merits and it is

argued that this decision gives rise to a right of second appeal. It is well-established that when a lower appellate Court entertains an appeal which is

not competent and modifies the decision of the trial Court, a second appeal will lie. See Bandiram Mookerjee v. Purna Chandra Roy I.L.R.(1917)

Cal. 926. Jwala Prasad v. Salig Ram I.L.R.(1891) All. 575. and Ram Ratan Prasad v. Banarsi Lal I.L.R.(1929) Pat. 685. But it is doubtful

whether such a second appeal will lie when the lower appellate Court has dismissed the appeal preferred to it. Certainly if the lower appellate

Court dismissed the appeal as incompetent, there is no apparent reason for entertaining a second appeal against that decision. It is argued that if

the lower appellate Court wrongly entertains the appeal and dismisses the appeal on the merits, the decision would give rise to a right of second

appeal just as if the lower appellate Court had interfered with the trial Court''s order. Some authority for this proposition is found in a decision of

Walsh, J., in Nachimuthu Chettiar Vs. Ramakkal, . which quotes the words in Ram Ratan Prasad v. Banarsi Lal I.L.R.(1929) Pat. 685. to the

effect that a second appeal will lie whatever be the nature of the order passed by the lower appellate Court. But the Patna case was dealing with a

contention that there would be no second appeal if the lower appellate Court has merely remanded the case. It was not dealing with a case in

which the. lower appellate Court has dismissed the appeal. Whatever be the correct view on the question-whether the dismissal of an incompetent

appeal will give rise to a right of second appeal, it seems to me that the question is largely academic; for if the District Judge wrongly entertained an

appeal and dismissed that appeal on the merits, the only order which can properly be passed in second appeal would be to set aside the

incompetent appellate order. There is no apparent justification for going into the merits of the trial Court''s order, which is unaffected by the

incompetent appellate decision. Should this Court, when hearing a second appeal against an incompetent appellate order come to the conclusion

that the trial Court''s order is wrong on the merits, in a proper case this Court will no doubt interfere in revision with the order of the trial Court.

But in second appeal the only thing which this Court can properly do is to set aside the incompetent appellate order.

On the facts of the present case, it does not appear that there are any grounds upon which the revisional jurisdiction of this Court can be

invoked against an order of the trial Court. In this view I dismiss the appeal with costs.