TMI Blog1970 (8) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... urned auction sale did not set out the hour when the auction would be held though the original proclamation under which the auction sale was to be held on the earlier date specified both the hour and the date. The appellant contended that the failure to mention the hour contravened Order XXI, r. 69 and that such a contravention was a material irregularity which vitiated the sale. The objection was overruled by the Execution Court. The appellant thereupon filed an appeal in the High Court where a single Judge upheld the objection holding that the failure to set out the hour amounted to a material irregularity, inconsequence whereof the appellant had been prejudiced by the sale having fetched too low a value. On these findings the learned Judge allowed the appeal and set aside the auction sale. Aggrieved by the said order' the respondent filed. a Letters Patent appeal under cl. 10 of the Letters Patent of the Allahabad High Court and, rule 5 of Ch. VIII of the Rules of the High Court. A Division Bench of the High Court reversed the order passed by the learned single Judge and allowed the appeal. Following the Full Bench decision of that High Court in Standard Glass Beads Factory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs affecting the rights of both the (1) A. I. R. 1960 All. 692 (F. B.) 9Sup.CI(P)171-6 auction purchaser and the judgment-debtor. The question is whether such an order setting aside the sale is a 'judgment' within the meaning of cl. 10 of the Letters Patent. At one time the view held by the Allahabad High Court was that no Letters Patent appeal could, lie against such an order. Thus, in Piare Lai v. Madan Lal A. I. R. 1917 All. 325. it held, following its earlier decision in Muhammad Naimullah Khan v. Ibsanullah Khan [1892] 14 All. 226 (F. B.), that no appeal lay under cl. I 0 of the Letters Patent from an order of a single Judge of the High Court dismissing an appeal from an order of an executing court on an application under 0. XXI, r. 90. That decision, however, was rendered, on a view that s. 104(2) of the Code debarred even a Letters Patent appeal under cl. 10. Subsequently, the High Court abandoned that view and held in Ram Sarup v. Kaniz Ummehani I. L. R. [1937] All. 886 that S. 104(2) did not affect Letters Patent appeals from an order thereby falling in line with the other High Courts (see Mulla, Code of Civil Procedure, (13th ed.) 452). None of these decisions was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, that the said observation was made that the order sought to be appealed against did not affect the merits of the controversy in the suit nor did it terminate or dispose of the suit. For an order to be a 'judgment' it is not always necessary that it should put an end to the controversy in the suit or should terminate the suit. Even the narrower definition of a 'judgment as given by Couch, C.J. in the Justices Of the Peace for Calcutta 8 Beng. L. R. 433 was that it must mean a decision which affects the merits of the question between the parties by determining some right or liability and such a decision might be either final or preliminary or interlocutory. The question as to when an order is -a judgment once again arose, in the State of Uttar Pradesh v. Dr. Vijay Anand Maharaj (1963) (1) S. C. R. 1. The question was whether an order passed by a single Judge of a High Court dismissing an application for a review of his earlier order was a judgment amenable to a Letters Patent appeal. The question arose in the following manner. The Additional Collector, Benaras' assessed the respondent to an agricultural income tax under powers conferred on him Under the U.P. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d be in issue and any decision thereon -could legitimately be said to be a decision determining the rights of parties. It also ,observed that the 'decision of the learned single Judge dismissing the writ petition was certainly a decision denying the right of the appellants alleged to have been conferred under the amending Act, and therefore,, the order dismissing the writ petition was a 'judgment' within the meaning of cl. 10 of the Letters Patent as also r. 5 of Ch. VIII of the Rules of the High Court, and therefore, the Division Bench of the High Court erred in holding that no appeal Jay against the said order. In Begum Aftab Zamwi v. Lal Chand Khanna I. L. R. [1960] Delhi 34 (F. B.), the High Court of Delhi also has held that the expression 'judgment' in cl. 10 of the Letters Patent of the Lahore High-Court not only meant a judgment having the effect of a decree, but any order which affected the merits of a controversy between the parties by determining some disputed right or liability. In Shankarlal Aggarwal v. Shankarlal Poddae [1964] (1) S. C. R. 717 the question was whether an order passed by a single Judge of the High Court confirming an auction sale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stablished is that there was not only inadequacy of the price but that that inadequacy was caused by reason of the material irregularity or fraud. A connection has thus to be established between the inadequacy of the price and the material irregularity. The learned single Judge found that the appellant had been prejudiced inasmuch as the said sale realised only ₹ 8,000/- though the value of the appellant's share was ₹ 20,000/-. This view was founded upon a report made by the Amin of the Execution Court in which that officer had valued the said share at ₹ 20,000/-. The Division Bench, however, held, and in our view rightly, that the learned single Judge was in error in relying upon that report. The record clearly shows that no notice was given to the respondent of the appellants application to have a commissioner appointed to value the property. The trial Court appointed the Amin as com. missioner without any such notice and behind the back of the respondent. The Amin made his valuation without giving an opportunity to the respondent to be heard. No opportunity was ever given to the respondent to raise any objection to- -the said valuation. The report was fi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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