PETITIONER: <NAME> Vs. RESPONDENT: STATE OF BIHAR & ORS. DATE OF JUDGMENT04/05/1971 BENCH: <NAME>, C.A. BENCH: <NAME>, C.A. SIKRI, <NAME>, G.K. REDDY, P. JAGANMOHAN DUA, I.D. CITATION: 1971 AIR 1409 1971 SCR 634 1971 SCC (2) 330 CITATOR INFO : R 1973 SC 834 (10) F 1976 SC 37 (22) F 1976 SC 667 (3) R 1978 SC 803 (30) F 1983 SC 130 (20) RF 1983 SC1134 (2) R 1984 SC1064 (10) RF 1984 SC1560 (3) R 1984 SC1855 (8) F 1984 SC1905 (2,2,3,5,6) F 1985 SC1196 (7) F 1987 SC 943 (8) F 1989 SC2088 (7) ACT: Constitution of India, 1950, Art. 32- Right to pension, if property-Petition to enforce-Maintainability. Bihar Service Code, r. 76-Automatic termination without opportunity to show cause-If violates Art. 311. Bihar Pension Rules, r. 46-Scope of. HEADNOTE: The petitioner was a Deputy Inspector of Schools and a member of the Education department of the respondent-<ORG>. On September 2, 1953, the Director of Public Instruction passed an order directing a censure to be recorded in the character roll of the petitioner. On March 5, 1960, he was reverted to <ORG> of <ORG>, as a result of an inquiry into certain charges. He filed a suit challenging the two orders. On August 5, 1961, the <NAME> passed an order restraining the respondent from enforcing the order dated March 5, 1960. On April 3, 1962, the temporary injunction was vacated by the Subordinate Judge. On April 11, 1963, the suit was decreed and the respondent was prohibited from enforcing the order dated March 5, 1960. This decree was set aside in appeal by the Subordinate Judge on June 24, 1964, and the petitioner's second appeal was dismissed by <ORG> on February 11, 1965. On August 5, 1966, the Director of Public Instruction passed an order that the petitioner 'having not been on his duties for more than five years since March 1, 1960 has ceased to be in <ORG> employ since March 2, 1965 under r. 76 of the Bihar Service Code.' The petitioner having completed 58 years of age addressed a letter to the Director of Public Instruction on July 18, 1967 requesting him to arrange for the payment of her. pension, and on June 12, 1968 the Director of Public Instruction passed orders stating that under r. 46 of the Bihar Pension Rules he was not entitled to any pension. The petitioner filed the present writ petition under Art. 32 challenging the various orders. HELD: (1) No relief could be granted in respect of the orders dated September 2, 1953 and March 5, 1960, as, (a) they were already covered by the decision of <ORG> in second appeal. (b) no relief could be granted with respect to an order passed as early as 1953; and (c) the orders did not infringe any fundamental rights of the petitioner. [652G-H 653A-B] (2) The order dated August 5, 1966, declaring, under r. 76 of the Service Code that the petitioner had ceased to be in <ORG> service should be set aside. [653-A-B] (a) The essential requirement for taking action under the said rule is that the government servant should have been continuously absent from duty for over five years. Under this rule it is immaterial whether absence from duty by the government servant was with or without leave so long as it is established that he was absent from duty for a continuous period for over five years. Admittedly the petitioner, in the present case, was on duty till March 10, 1960 and he ceased to attend to his duty only from March 635 11, 1960. Therefore, the order stating that he 'ceased to be in government employ on March 2, 1965, was on the face of it erroneous.' [643C-D, E; 644A-C] (b) Assuming that the order should be read that the petitioner was not on his duty continuously for more than five years from March 11, 1960 till August 5, 1966 the date of the order even then, the order would be illegal. From August 5, 1961, the date of temporary injunction granted by the <NAME> till April 3, 1962, when that order was vacated by the Subordinate Judge, the <ORG> did not allow the petitioner to join duty in the senior post in spite of several letters written by him. Again on April 11, 1963 when the <NAME> granted a decree in favour of the petitioner, the respondent did not obtain any stay order from the appellate court, and so, the decree of the trial court was in full force till it was set aside in appeal on June 24, 1964. During that period, that is, from April 11, 1963 to June 24, 1964 the petitioner wrote several letters requesting the respondent to permit him to join duty in the senior grade, but the respondent did not permit him to do so. Therefore, there was no question of the petitioner being continuously absent from service for over 5 years during the period referred to when he was willing but the respondent did not allow him to serve, and hence, r. 76 of the Service Code was not applicable. [644E-F; 645A-D,G; 646D-H; 647A-B,E-F] (c) Even if the r. 76 was applicable and it was a question of automatic termination of service, Art. 311 applies to such cases also. According to the respondents a continuous absence from duty for over five years apart from resulting in the forfeiture of the office also amounts to misconduct under r. 46 of the Pension Rules disentitling the office to receive pension. The respondent did not give an opportunity to the petitioner to show cause against the order proposed. Hence there was violation of Art. 311. [647GH ; 648D-E] Jai Shankar v. <ORG> of Rajasthan,  1 S.C.R. 825, followed. (3) The order dated June 12, 1968 stating that under r. 46 of the Pension Rules the petitioner was not entitled to any pension should also be set aside. [649C] Payment of pension under the rules does not depend upon the discretion of the <ORG> <ORG> but is governed by the rules and a government servant, coming within those rules is entitled to claim pension. Under r. 46 a <ORG> servant dismissed or removed for misconduct, insolvency or inefficiency is not eligible for pension. In the present case it was contended that the petitioner's absence for over five years, amounted to misconduct and inefficiency in service. But when the order dated August 5, 1966 has been held to be illegal then the order dated June 12, 1968 based upon it also falls to the ground. [649B-C;D-H;65OA-B] (4) The grant of pension does not depend upon any order. It is only for the purpose of quantifying the amount having regard to the service and other allied matters that it may be necessary for the authorities to pass an order to that effect, but the right to receive pension flows to an officer not because of any such order but by virtue of the rules. The right of the petitioner to receive pension is property under Art. 31(1) and by a mere executive order the <ORG> had no power to withhold it. Similarly, the said claim is also property under Art. 19(1) (f). It, therefore follows, that the order dated June 12, 1968 denying the petitioner the right to receive pension affected his fundamental right and as such the writ petition was maintainable. [650G-H; 652B-C, D-F] <NAME> v. <ORG> of Punjab, I.L.R.  Punjab & Haryana 279, (F.B) approved. 636 (5) The bar against <ORG> entertaining any suit relating to the matters under the Pension Act does not stand in the way of a writ of mandamus being issued to the <ORG> to properly consider the claim of the petitioner for payment of pension according to law. JUDGMENT:

ORIGINAL JURISDICTION: Writ Petition No. 217 of 1968. Petition under Art. 32 of the Constitution of India for the enforcement of fundamental rights.

<NAME>, <NAME>, <NAME>, <NAME> and <NAME>, for the petitioner.

<NAME>, for the respondents.

The Judgment of the Court was delivered by Vaidialingam, J.-In this writ petition under Art. 32 of the Constitution, the petitioner prays for the issue of a writ to the respondents in the nature of Certiorari or any other appropriate writ, direction or order quashing four orders dated September 2, 1953, March 5, 1960, August 5, 1966 and June 12, 1968. He further prays for issue of a writ in the nature of a Writ of Mandamus directing the respondents to treat him as having retired at the age of 58 and to pay him the pension that he is entitled to.

Though four orders are cought to be quashed, as we will show in due course, the grievance of the petitioner regarding the orders dated September 2, 1953 and March. 5, 1960 can no longer be considered by this <ORG> in this writ petition. In consequence only the last two orders, mentioned above, survive for consideration.

We will refer briefly to the circumstances leading up to the passing of the orders, referred to above, in order to appreciate the circumstances under which the last two orders in particular came to be made as well as the ground of attack levelled against these orders.

The petitioner joined service as an Assistant Teacher on September 1, 1928 in <ORG> and was promoted as Sub-Inspector of Schools, Lower Division, in <ORG> from May 31, 1934. The petitioner later on was promoted as Deputy Inspector of Schools in Upper Division of <ORG> and was posted at <NAME> in the Singhbhum District in the Chhotanagpur Division, Bihar from November 1, 1949. The State of Seriakella having merged in the erstwhile province of Bihar, the provincial Government took over and assumed control directly of the education in the locality through its employees of <ORG> unlike other parts of, the province where the education was under the control and management of the District and Local Boards. The service rendered by the petitioner as Deputy Inspector of Schools, <NAME> was found satisfactory by the superior officers including the Director of Public Instruction and hence he was recommended to be appointed to a superior post of Education Officer in the Community Project. By about the end of 1951, he was transferred to Purulia in the district of Manbhum as Additional Deputy Inspector of Schools. The petitioner was later on transferred to <NAME> in or about May, 1953. At <NAME> the petitioner received a copy of the order dated September 2, 1953 from the Director of Public Instruction directing a censure to be recorded in the character roll of the petitioner based on the report of one <NAME>, District Inspector of Schools, who, according to the petitioner, was inimically disposed towards him. The attempt of the petitioner to have the order dated September 2, 1953 cancelled proved unsuccessful. This is the first order that is sought to be quashed by the petitioner. The petitioner on the basis of certain allegations was placed under suspension on February 6, 1954 and relieved from his duty as Deputy Inspector of Schools, <NAME>. There was a charge sheet issued to the petitioner on March 16, 1954 and he was found guilty. But these inquiry proceedings were later on set aside and a fresh inquiry was ordered. In consequence the order of suspension was cancelled, but immediately thereafter a fresh inquiry was conducted in which he was again found guilty as per the report of the Inquiry Officer dated September 22, 1959. <ORG>, who was the Director of Public Instruction. passed an order on March 5, 1960 accepting the finding of the Inquiry Officer recorded against the petitioner and held that the charges had been proved against him. Accordingly, by this order the petitioner was reverted, as punishment, to <ORG> and also directing a censure entry to be recorded in <ORG> personal character roll. This is the second order that is challenged in this writ petition. It is not necessary for us to deal in any detail about the first and the second order as both those orders are now concluded against the petitioner by the decision of <ORG>.

The petitioner filed title suit No. 86 of 1961 in <ORG>, Patna, for a declaration challenging the order dated March 5, 1960 as well as the inquiry proceedings on the basis of which the said order was passed. He also challenged the order of censure passed on September 2, 1953 and further incorporated in the order of March 5, 1960. Though the suit was contested by the respondents, it was ultimately decreed on April 11, 1963. The respondents filed title appeal No. 132/24 of 1963-64 before the Subordinate Judge, <ORG>, Patna, challenging the decree of the <NAME>. On June 24, 1964 the appeal was allowed, with the result that the petitioner's title suit No. 86 of 1961 stood dismissed. The petitioner's Second Appeal No. 640 of 1964 was dismissed by <ORG> on May 4, 1967. From these proceedings it is clear that the order of censure dated September 2, 1953 as well as of reversion dated March 5, 1960 have both been found to be correct by <ORG> and it is no longer open to the petitioner to canvass those orders again. But it may be necessary for us to refer to certain proceedings connected with the title suit when we deal with the attack of the petitioner against the legality of the orders dated August 5, 1966 and June 12, 1968. When the order of reversion dated March 5, 1960 was passed, the petitioner was working as Deputy Inspector of Schools, Deoghar. The office of the Deputy Inspector of Schools was closed for Holi holidays from March 11, 1960 and the petitioner claims that he left the headquarters to go to Patna with the permission of the authorities. The order dated March 5, 1960 was received by him at Patna on March 23, 1960 when he was ill. He applied for leave. According to the petitioner, he obtained an order of temporary injunction on October 5, 1961 in his title suit No. 86 of 1961 restraining the respondents from giving effect to the order dated March 5, 1960 reverting him to <ORG> in the <ORG>. Though he offered to join the post to which he was entitled originally, he was not allowed by the respondents to join <ORG> of <ORG>. The action of the respondent in refusing to permit him to join duty was in flagrant violation of the order of temporary injunction granted by the <NAME>, Patna.

On August 5, 1966 the Director of Public Instruction passed an order that the petitioner "having not been on his duties for more than five years since March 1, 1960, has ceased to be in <ORG> employ since March 2, 1965 under r. 76 of the Bihar Service Code". The petitioner made representations for cancellation of this order but without any success. This is the third order that is being challenged.

The petitioner having completed 58 years of age, addressed a letter to the Director of Public Instruction on July 18, 1967 requesting him to arrange for the payment of the petitioner's pension. No reply was received by the petitioner for a long time inspite of repeated reminders. Ultimately on June 12, 1968 the Director of Public instruction passed orders on the petitioner's ,application dated July 18, 1967 regarding payment of pension.

In this order it is stated that under r. 46 of the Bihar Pension Rules (hereinafter to be referred as the Pension Rules), the <ORG> is unable to grant any pension to the petitioner. We will refer to this rule at the appropriate stage but it is enough to take note of the fact that under the said rule, no pension may be granted to a government servant dismissed or removed for misconduct, insolvency or inefficiency. According to the petitioner this order is illegal and void. This is the fourth order that is under challenge.

According to the petitioner the order dated August 5, 1966 is an order removing him from service and it is illegal and void as it has been passed in contravention of Art. 311 of the Constitution. Further the order is also not legal and not warranted by the Rules for the reason that the petitioner had not been absent from duty for over five years continuously. According to the petitioner there is a further infirmity in the order as the respondents are inconsistent in their pleas regarding the date from which the period of continuous absence has to be calculated. This plea is based upon the different dates given in the order dated August 5, 1966 and the dates given in the counter- affidavit filed on behalf of the respondents. The attack on the order dated June 12, 1968 is two fold, namely, (a) that it is not warranted by r. 46 of the Pension Rules under which it is purported to be passed; and (b) the petitioner's right to get pension is property and by the respondents not making it available to him, his fundamental rights guaranteed under Arts. 19(1)(f) and 31(1) of the Constitution, have been affected.

The Assistant Director of Education has filed a counter affidavit on behalf of the respondents. According to the respondent the orders of censure passed on September 2, 1953 and of reversion dated March 5, 1960 are valid and legal and in passing those orders no violation of any rules has been made. The petitioner was given full opportunity to participate to the inquiry proceedings and it was after considering the report as well as the explanation furnished by the petitioner that the order of reversion was passed. The petitioner is not entitled to challenge any of those orders as they are concluded by the decision of <ORG> dated March 4, 1967 in Second Appeal No. 640 of 1964.

Regarding the order dated August 5, 1966, it is admitted by the respondents that the petitioner was on duty till March 10, 1960. He ceased to attend office only from March 11, 1960. It is further admitted that it has been stated by mistake in the order that the petitioner has not been on duty for more than five years since March 1, 1960. The date "March 1, 1960 should be read as "March 11, 1960". The respondents dispute the averment of the petitioner that he left the headquarters from March .11, 1960 with the permission of the authorities. On the other hand, according to them, the petitioner had put in an application in the office of <ORG> for leave on March 11, 1960 and that he did not obtain any prior permission for leaving the headquarters. It is further averred that the order dated March 5, 1960 reverting the petitioner came into- effect immediately and the petitioner was also informed of the same. It is specifically pleaded by the respondent as follows:

"In other words since 11-3-1960 till 5-8-1968 he was continuously not in service for more than 5 years. By virtue of rule 76 of Bihar Service Code of 1952 the petitioner ceased to be in the service of the <ORG> as he remained absent from duty continuously for 5 years and this itself amounts to misconduct and inefficiency in the service. In the present case the provisions of article 311 do not apply to the- facts of this case because his services are not terminated on account of any charge but are automatically terminated by virtue of the statute i.e. rule 76 of the Bihar Service Code 1952. Article 311 applies where the services of a government servant are terminated in respect of any charge. But it does not apply where a government servant ceases to be a government servant by virtue of any statute."

According to the respondent there has been no breach committed of Art. 311 of the Constitution when the order dated August 5, 1966 was passed on the basis of r. 76 of the Bihar Service Code, 1952 (hereinafter to be referred as the Service Code). It is to be noted at this stage that there is a variation regarding the dates of continuous absence for over five years mentioned in the order and in the counter- affidavit. They will be dealt with by us when the attack of the petitioner on the order dated August 5, 1966 is con- sidered. It is further admitted by the respondents that even after the injunction order was passed by the <NAME>, the <ORG> was always insisting on the petitioner to join in the lower grade to which post he had been reverted and that the petitioner never joined that post. Dealing with the order dated June 12, 1968 in and by which the petitioner was informed that the <ORG> was unable under r. 46 of the Pension Rules to grant him pension, the respondents state that the order is valid and fails squarely under the said rule. According to the respondents the order dated August 5, 1966 is an order removing the petitioner from service for not attending to his duty for more than five years and that by itself amounts to misconduct. Therefore, the petitioner was not entitled to claim any pension. There is also an averment to the effect that there is no question of any fundamental right of the petitioner being affected by the orders under attack and hence the writ petition is not maintainable. The petitioner has filed a rejoinder wherein he has pointed out the inconsistent dates given in the order dated August 5, 1966 and in the counter-affidavit filed on behalf of the respondents by the Assistant Director of Education. According to the petitioner in whatever manner the period is calculated either as per the dates given in the order or by the dates given in the counter-affidavit, rule 76 does not apply as he has not been continuously absent from duty for over five years. The petitioner further avers that he was absent from duty after taking the permission of the autho- rities. According to the petitioner he has not been continuously absent from duty for over five years if the period is properly calculated according to the various orders passed by the <NAME>. Patna, in his title suit. According to the petitioner, when a court has restrained the respondents from giving effect to the order of reversion and when he offered to join duty in the post from which he was reverted, the respondents without any regard for the court orders, did; not permit him to join duty, but, on the other hand, insisted that he should join duty in the lower rank to which he had been reverted. This, according to the petitioner, is illegal. The petitioner further reiterates his allegation that he was entitled to pension and that withholding of the same affects his fundamental rights. According to the petitioner the respondents do not deny his right to get pension but, on the other hand, plead that as he has been removed from service by the order dated August 5, 1966, he is not entitled to pension by virtue of r. 46 of the Pension Rules. He further points out that as the order dated August 5, 1966 is illegal, the order dated June 12, 1966, which is based upon the earlier order, is also null and void.

The questions that arise for consideration are whether the orders dated August 5, 1966 and June 12, 1968 are legal and valid. Before we consider that aspect, it is necessary to state that in order to sustain this petition under Art. 32 , the petitioner will have to establish that either the order dated August 5, 1966 or June 12, 1968, or both of them affect his fundamental rights guaranteed to him. The order of August 5, 1966, according to the petitioner, is one removing him from service and it has been passed in viola- tion of Art. 311. That the said order is one removing the petitioner from service is also admitted by the respondents in paragraph 11 of the counter-affidavit filed on their behalf by the Assistant Director of Education. Assuming that the said order has been passed in violation of Art. 311 , the said circumstance will not give a right to the petitioner to approach this Court under Art. 32. The stand taken by the petitioner is that his right to get 41-1 S.C. India/71 pension is property and it does not cease to be property on the mere denial or cancellation by the respondents. The order dated June 12, 1968 is one withholding the payment of pension or at any rate amounts to a denial by the respondents to his right to get pension. Either way, his rights to property are affected under Arts. 19(1)(f) and 31(1) of the Constitution. His right to pension cannot be taken away by an executive order. In the counter affidavit, the respondents do not dispute the rights of the petitioner to get pension, but they take the stand that the order dated June 12, 1968 is justified by r. 46 of the Pension Rules. This aspect will be dealt with by us later. There is only a bald averment in the counter-affidavit that there is no question of any fundamental right and therefore this petition is not maintainable. As to on what basis this plea is taken, has not been further clarified in the counter- affidavit. But before us Mr. <NAME>, learned counsel for the respondents, urged that by withholding the payment of pension by the <ORG>, no fundamental rights of the peti- tioner have been affected.

We are not inclined to accept the contention of Mr. <NAME> that no fundamental rights of the petitioner are affected by passing the order dated June 12, 1968. 'We will refer to the relevant Pension Rules bearing on the matter and also certain decisions. In our opinion, the right to get pension is "property" and by withholding the same, the petitioner's fundamental rights guaranteed under Arts. 19(1)(f) and 31(1) are affected. As the matter is being discussed more fully in the latter part of the judgment, it is enough to state at this stage that the writ petition is maintainable. Even according to the respondents the order dated June 12, 1968 has no independent existence and that order has been passed on the basis of the earlier order dated August 5, 1966. In our opinion, if the order dated August 5, 1966 cannot be sustained, it will follow that the order dated June 12, 1968 will also fall to the ground. Hence we will deal, in the first instance, with the validity of the order dated August 5, 1966. The full text of the order dated August 5, 1966 passed by the Director of Public Instruction, Bihar, is as follows:

"Number-7 / 07 / 60 Edn. 3791 Sri Devaki Nandan Prasad, Sub-Inspector of Schools, Deoghhar, having not been on his duties for more than 5 years since 1-3-60 has ceased to be in <ORG> employ since 2-3-65 under rule 76 of the Bihar Service Code.

(<NAME> Director of <ORG> Bihar.

Memo No. 3791 Patna, dated 5th August, 1966. Copy forwarded to <NAME>, New Yarpur, Patna for information."

Rule 76 of the Service Code reads as follows: "Unless <ORG>, in view of the special circumstances of the case shall otherwise determine, A <ORG> servant after five years of continuous absence from duty, elsewhere than on foreign service in India, whether with or without leave, ceases to be in <ORG> employ."

The essential requirement for taking action under the said rule is that the government servant should have been Continuously absent from duty for over five years. Under this rule it is immaterial whether absence from duty by the government servant was with or without leave so long as it is established that he was absent from duty for a continuous period for over five years. We are referring to this aspect because it is the case of the petitioner that he availed himself of leave with effect from March 11, 1960 and he left the headquarters after obtaining the necessary sanction from his superior officers. On the other hand, it is the case of the respondents that the petitioner merely putting in an application for leave from March 11, 1960 left the headquarters without obtaining the prior permission of the superiors. It is not necessary for us to deal with this controversy, as under the rules absence for the period stated therein, either with or without leave, are both treated on the same basis.

According to the dates given in the order, the petitioner has not been on his duties for more than five years from March 1, 1960 and that he ceased to be in government employ from March 2, 1965. According to the petitioner this order is illegal because he was on duty till March 10, 1960 in which case continuous absence of five years would not be completed on March 2, 1965. But the more serious attack against this order is that there is no question of the petitioner not being on his duties continuously for more than five years. On the other hand, according to him, he has always been ready and willing to do his duty and the respondents have illegally prevented him from joining duty by ignoring orders of the civil court. In this connection, on behalf of the petitioner, Mr. <NAME>, learned counsel, has referred us to the details regarding the institution of the title suit No. 86 of 1961 by the petitioner as well as to certain orders passed by that court. He has also drawn our attention to the letters written by the petitioner to the authorities offering to work and the respondents not sending any reply and ultimately asking the petitioner to join duty in the reverted post, though the order of reversion has been declared, illegal by the <ORG>, Patna. We have already referred to the averments in the counter-affidavit filed on behalf of the respondents. So far as this aspect is concerned, it is admitted in paragraph 8 of the counter-affidavit that the petitioner was on duty till March 10, 1960 and that he ceased to attend to his duty only from March 11, 1960. Therefore, the averment of the petitioner that he was on duty till March 10, 1960 is accepted as correct by the respondents. Therefore, it follows that even according to the respondents, the petitioner was absent from duty con- tinuously for more than five years only from March 11, 1960 and he ceased to be in government employ on March 2, 1965. Without anything more it can be easily said that this calculation is absolutely erroneous because from the dates mentioned above, the petitioner cannot be considered not to have been on duty for more than five years.

There is a slight shift in the stand taken by the respondents in the counter-affidavit. While they admit that the date from which the period of absence should be calculated is March 11, 1960 and not March 1, 1960, they have stated that the petitioner. was absent from March 11, 1960 till August 5, 1966, the date on which the order was passed and hence he was continuously not in service for more than five years. That is even the outer period given in the order dated August 5, 1966, namely, March 2, 1965 is changed by the respondents to the date of passing of the order dated August 5, 1966.

We will now proceed on the basis that the order dated August 5, 1966 should be read in such a manner that the petitioner was not on his duty continuously for more than five years from March 11, 1960 till August 5, 1966. If the, respondents are able to establish this circumstance, it is needless to state that r. 76 of the Service Code will come into operation irrespective of the fact whether the petitioner was absent with or without leave. According to the petitioner, he has not been continuously absent for over five. years even during the above period as stated by the respondents.

It is now necessary to refer to certain proceedings connected with the title suit No. 86 of 1961 instituted by the petitioner in <ORG>, Patna. In that suit the petitioner challenged the order dated March 5, 1960 in and by which he was reverted to the lower division of <ORG> and a censure was directed to be recorded against his character roll. According to the respondents in this suit Me order of censure passed on September 2, 1953 was also challenged. On August 5, 1961, the <ORG> passed an order restraining the present respondents from operating the punishment order passed on March 5, 1960 by the Director of Public Instruction on the petitioner till the disposal of the suit. It is now admitted by the respondents that the petitioner was on duty till March 10, 1960 and that he was absent only from March 11. 1960. That there was an order of temporary injunction passed by the court restraining the respondents from giving effect to the order of March 5, 1960 is not challenged in the counter-affidavit. According to the petitioner he went on October 13, 1961 to join his post from which he was illegally reverted, but in spite of the order of the <ORG>, Patna, the respondents did not permit him to join duty. That he was prepared to join duty and work is clear from the letters written by the petitioner to the Director of Public Instruction on October 13, 1961, October 24, 1961 and November 1, 1961. There was no reply by the respondents. It is no doubt true that on April 3, 1962, the temporary injunction granted by the <ORG>, Patna, was vacated by the Subordinate Judge. On April 11, 1963 the title suit No. 86 of 1961 instituted by the petitioner was decreed and the respondents were prohibited from enforcing the order dated March 5, 1960 reverting the petitioner from the senior grade to the lower grade of <ORG>. The petitioner again wrote a letter on April 18, 1963 to the Director of Public Instruction drawing the latter's attention to the decree passed in title suit No. 86 of 1961 and requesting him to permit the petitioner to join duty as Deputy Inspector of Schools. There was a reply on November 27, 1963 by the Director of Public Instructions to the effect that the plea of the petitioner has been considered at all levels of the <ORG> and the <ORG>. The petitioner was directed to report himself to the Regional Deputy Director of Education, Bhagalpur Division and to join duty in "Lower Division of Subordinate Educational Service". The letter proceeds to state "in case of disobedience of order you will be charged with insubordination". We are constrained to remark that the attitude taken in this letter on behalf of the <ORG> is not commendable at all. Admittedly there was a decree passed by the <ORG> in title suit No. 86 of 1961 on April 11, 1963 restraining the respondents from giving effect to the order dated March 5, 1960 reverting the petitioner from the post of Deputy Inspector of Schools to <ORG>. Admittedly the respondents were parties to the said decree and they had not obtained any order of <ORG> staying the operation of the decree in the suit. The effect of the decree passed by the <ORG> was that the petitioner was entitled to work in the original post which he was holding prior to his reversion. That these aspects have been missed by the respondents is evident from the reply of November 27, 1963 sent by the Director of Public Instruction. The petitioner sent a further letter dated December 6, 1963 in reply to the letter of the Director of Public Instruction dated November 27, 1963. In this letter the petitioner again referred to the decree of the <ORG>, Patna, dated April 11, 1963 and pointed out that he was entitled to hold the original post which he was occupying prior to the order of reversion, which has; been directed not to be put into operation by the court. He further pointed out that the directions contained in the letter dated November 27, 1963 sent by the Director of Public Instruction was not in conformity with the decree of the <ORG>. He further made a request that he should be allowed to join duty in the original post in the senior grade and also made a further request for payment of arrears of his salary. There was no reply by the respondents and the petitioner was not allowed to join duty as desired by him. The above correspondence is not at all disputed by the respondents. In fact they have admitted in the counter- affidavit that even after the order of injunction, the <ORG> was always insisting on the petitioner joining duty as Sub-Inspector of Schools, that is, in the lower grade and that the petitioner never joined duty in that post. To complete the narration on this aspect. the decree of the <ORG> in favour of the petitioner restraining the respondents from enforcing the order dated March 5, 1960 was set aside on appeal by the Subordinate Judge on June 24, 1964 in title appeal No. 132/24 of 1963/64. The petitioner's Second Appeal No. 640 of 1964 was dismissed by <ORG> on February 11, 1965.

From the narration of the above facts, it will be clear that from October 5, 1961, the date of temporary injunction granted by the <NAME>, till April 3, 1962, when the order of temporary injunction was vacated by the Subordinate Judge, the <ORG> did not allow the petitioner to join duty in the senior post, which he was entitled to occupy by virtue of the order of injunction. We have already referred to the fact that the petitioner sent letters dated October 5, 1961, October 13, 1961, October 20, 1961 and November 1, 1961 expressing his readiness and willingness to work in the senior post. The respondents did not permit him to join duty. Therefore, it cannot be said that the petitioner was absent from duty during this period. Again on April 11, 1963, the <NAME> granted a decree in favour of the petitioner in the suit. The respondents did not obtain any stay order from <ORG>. So the decree of the trial court was in full force till it was set aside on appeal on June 24, 1964. During the period April 11, 1963, June 24, 1964, the petitioner wrote several letters and to which we have made a reference earlier, requesting the respondents to permit him to join duty in the senior grade. The respondents did not permit him to join duty in the senior grade; but, on the other hand, insisted on the petitioner's joining duty in the lower grade on threat of disciplinary action being taken. This attitude of the respondents, we have already pointed out, was in flagrant violation of the order of the <NAME>. Therefore, during the period April 11, 1963 to June 24, 1963, it cannot be said that the petitioner was absent from duty. Hence it will be seen that the claim made by the respondents in the counter- affidavit that the petitioner, since March 11, 1960 till August 5, 1966 was continuously not in service for over five years is fallacious. There is no question of the petitioner not being in continuous service for over five years during the period referred to above. On the other hand, the period during which it could be said ',,hat the petitioner was absent was from March 11, 1960, the date on which he claims to have gone on leave till October 5, 1961 when the order of temporary injunction was passed by the <NAME>. From October 5, 1961 to April 3, 1962, we have already pointed out, the petitioner cannot be considered to have been absent from duty. Therefore, the continuity of absence is broken during this period. The petitioner can again be considered to have been absent from duty from April 3, 1962, the date on which the order of temporary injunction was vacated by the Subordinate Judge, till April 11, 1963, the date on which a decree was granted by the <NAME> in favour of the petitioner. During this period he was absent. But again the continuity of absence is broken during the period April 11, 1963 the date of the decree of the <NAME>, till June 24, 1964, the date when the Subordinate Judge reversed the decree of the trial court. We have already referred to the various letters written during this period by the petitioner as well as the reply sent by the Director of Public Instruction on November 27, 1963. During this period he cannot be considered to be absent from duty. The third period from which he can be again considered to be absent from duty is June 24, 1964, the date of the decree of the Subordinate Judge till August 5, 1966, the date on which the order was passed purporting to be under r. 76 of the Service Code. The above circumstances clearly show that the petitioner cannot be considered to have been continuously absent from duty for over five years during the period March 11, 1960 to August 5, 1966. if that is so, the essential condition for the application of r. 76 of the Service Code is lacking and, therefore, it follows that the order dated August 5, 1966 is not supported by r. 76 of the Service Code. Therefore that order is illegal and has to be quashed. A contention has been taken by the petitioner that the order dated August 5, 1966 is an order removing him from service and it has been passed in violation of Art. 311 of the Constitution. According to the respondents there is no violation of Art. 311. On the other hand, there is an automatic termination of the petitioner's employment under r. 76 of the Service Code. It may not be necessary to investigate this aspect further because on facts we have found that r. 76 of the Service Code has no application. Even if it is a question of automatic termination of service for being continuously absent for over a' period of five years, Art. 311 applies to such cases as is laid down by this Court in <CITATION> (1). In that decision this Court had to consider Regulation No. 13 of the Jodhpur Service Regulations, which is as follows:

"13. An individual who absents himself without permission or who remains absent without permission for one month or longer after the end of his leave should be considered to have sacrificed his appointment and may only be reinstated with the sanction of the competent authority."

It was contended on behalf of the State of Rajasthan that the above regulation operated automatically and there was no question of removal from service because the officer ceased to be in the service after the period mentioned in the regulation. This Court rejected the said contention and held that an opportunity must be given to a person against whom such an order was proposed to be passed, no matter how the regulation described it. It was further held "to give no opportunity is to go against Art. 311 and this is what has happened here".

In the case before us even according to the respondents a continuous absence from duty for over five years, apart from resulting in the forefeiture of the office also amounts to misconduct under r. 46 of the Pension Rules disentitling the said officer to receive pension. It is admitted by the respondents that no opportunity was given to the petitioner to show cause against the order proposed. Hence there is a clear violation of Art. 311. Therefore, it follows even on this ground the order has to be quashed.

The further question is about the legality of the order dated June 12, 1968 purporting to be passed under r. 46 of the Pension Rules. The petitioner wrote a letter dated July 18, 1967 requesting the Director of Public Instructions to arrange for payment of his pension as he had attained the age of superannuation. The order dated June 12, 1968 was passed in reply to the said request of the petitioner. In this order it is stated that under r. 46 of the Pension Rules, the <ORG> is unable to grant pension to the petitioner. Rule 46 of the Pension Rules is as follows:

"46. No pension may be granted to a Government servant dismissed or removed, for misconduct, insolvency or inefficiency, but to Government servants so dismissed or removed compassionate allowance may be granted when they are deserving of special consideration, provided that the allowance granted to any Government servant shall not exceed two-thirds of the pension which (1) [1966] 1 S. C. R. 825.

<NAME>

would have been admissible to him if he had retired on medical certificate."

It will be seen that under the said rule a Government servant who has been dismissed, or removed for misconduct, insolvency or inefficiency is not eligible for pension. The respondents 'have admitted in their counter-affidavit that the order dated August 5, .1966 purporting to be under r. 76 of the Service Code is an order of removal and it is further pleaded by them that the petitioner's absence for over five years itself amounts to misconduct,duct and inefficiency in service. We have already held that the ,order dated August 5, 1966, is illegal. If that is so, it follows ,.that the petitioner has not been continuously absent from duty for over five years and he is not guilty of any misconduct or in-efficiency in service. Therefore, it will further follow that withholding of pension under the- order dated June 12, 1968 on the basis of r. 46 of the Pension Rules, is illegal.

The respondents have not taken up the position that the offic ers like the petitioner are not entitled to pension. A reference to r. 5 of the Pension Rules shows that the officers mentioned therein are entitled to pension. There is no controversy that the petitioner is an officer in <ORG> of the Bihar '<ORG>. It is item No. 3 of the Schedule to r. 5. Rule 42 declares that every pension shall be held to have been granted Subject to the conditions contained in Chapter VIII. It is not the case of the respondents that Chapter VIII which applies to re-employment of pensioners, has any relevancy to the case on hand. We have already referred to r. 46. Under that rule a <ORG> servant dismissed or removed for misconduct, insolvency or 'inefficiency is not eligible for pension. But that rule clearly con-templates that action by way of dismissal or removal in respect of the three matters mentioned therein has already taken place -according to law. The bar under r. 46 will operate only when the conditions mentioned therein are satisfied. In fact the consequences envisaged under the rule flow from the action already taken. Rule 129 provides for the payment of superannuation pension to a <ORG> servant entitled or compelled by the ,rules to retire at a particular age. Rule 134 clarifies the payment of retirement pension to a <ORG> servant permitted to retire after completing qualifying service for 30 years or any such less ,time as may for any special class of <ORG> servants be prescribed. Rule 135 provides for <ORG> servants mentioned in r. 5 to be entitled on their resignation being accepted to -a retiring pension after completing qualifying service of not less than 25 years. Rule 146 provides the scale of pension for <ORG> servants mentioned in r. 5. We have only referred to -some of the important rules to show that the payment of pension does not depend upon the discretion of the <ORG>; but, on the other hand, payment of pension is governed by the Rules and a <ORG> servant coming Within the Rules is entitled to claim pension. The order dated June 12, 1968 has to be quashed in view of the fact that the foundation for the said order is the one based on the order dated August 5, 1966, which has been quashed by us. When the order dated August 5, 1966 can no longer survive, the order dated June 12, 1968 quite naturally falls to the ground.

The last question to be considered, is, whether the right to receive pension by a <ORG> servant is property, so as to attract Arts. 19(1)(f) and 31(1) of the Constitution. This question falls to be decided in order to consider whether the writ petition is maintainable under Art. 32. To this aspect, we have already adverted to earlier and we now proceed to consider the same.

According to the petitioner the right to receive pension is property and the respondents by an executive order dated June 12, 1968 have wrongfully withheld his pension. That order affects his fundamental rights under Arts. 19(1)(f) and 31(1) of the Constitution. The respondents, as we have already indicated, do not dispute the right of the petitioner to get pension, but for the order passed on August 5, 1966. There is only a bald averment in the counter-affidavit that no question of any fundamental right arises for consideration. Mr. <NAME>, learned counsel for the respondents, was not prepared to take up the position that the right to receive pension cannot be considered to be property under any circumstances. According to him in this case, no order has been passed by the <ORG> granting pension. We understood the learned counsel to urge that if the <ORG> had passed an order granting pension and later on resiles from that order, the latter order may be considered to affect the petitioner's right regarding property so as to attract Arts. 19(1)(f) and 31(t) of the Constitution. We are not inclined to accept the contention of the learned counsel for the respondents. By a reference to the material provisions in the Pension Rules, we have already indicated that the grant of pension does not depend upon an order being passed by the authorities to that effect. It may be that for the purposes of quantifying the amount having regard to the period of service and other allied matters, it may be necessary for the authorities to pass an order to that effect, but the right to receive pension flows to an officer not because of the said order but by virtue of the Rules. The Rules, we have already pointed out, clearly recognise the fight of persons like the petitioner to receive pension under the circumstances mentioned therein.

The question whether the pension granted to a public servant is property attracting Art. 31(1) came up for consideration before <ORG> in <CITATION> (1). It was held that such a right constitutes "property" and any interference will be a breach of Art. 3 1 (1) of the Constitution. It was further held that the <ORG> cannot by an executive order curtail or abolish altogether the right of the public servant to receive pension. This decision was given by a learned Single Judge. This decision was taken up in <ORG> by <ORG>. <ORG> in its decision in <ORG> v. <NAME> (2)approved the decision of the learned Single Judge. <ORG> held that the pension granted to a public servant on his retirement is "property" within the meaning of Art. 3 1 (1) of the Constitution and he could be deprived of the same only by an authority of law and that pension does not cease to be property on the mere denial or cancellation of it. It was further held that the character of pension as "property" cannot possibly undergo such mutation at the whim of a particular person or authority.

The matter again came up before a Full Bench of <ORG> in <CITATION> (1). <ORG> had to consider the nature of the right of an officer to get pension. The majority quoted with approval the principles laid down in the two earlier decisions of the same <ORG>, referred to above, and held that the pension is not to be treated as a bounty payable on the sweet will and pleasure of the <ORG> and that the right to superannuation pension including its amount is a valuable right vesting in a <ORG> servant. It was further held by the majority that even though an opportunity had already been afforded to the officer on an earlier occasion for showing cause against the imposition of penalty for lapse or misconduct on his part and he has been found guilty, nevertheless, when a cut is sought to be imposed in the quantum of pension payable to an officer on the basis of misconduct already proved against him, a further opportunity to show cause in that regard must be given to the officer. This view regarding the giving of further opportunity was expressed by the learned Judges on the basis of the relevant Punjab Civil Service Rules. But the learned Chief Justice in his dissenting judgment was not prepared to agree with the majority that under such circumstances a further opportunity should be given to an officer when a reduction in the amount of pension payable is made by the <ORG>. It is not necessary for us in the case on hand, to consider the question whether (1) A. T. R. 1962 Punjab 503. (2) I. L. R. 1965 Punjab 1. (3) I. L. R. 1967 Punjab & Haryana 278 before taking action by way of reducing or denying the pension on the basis of disciplinary action already taken, a further notice to show cause should be given to an officer. That question does not arise for consideration before us. Nor are we concerned with the further question regarding the procedure, if any, to be adopted by the authorities before reducing or withholding the pension for the first time after the retirement of an officer. Hence we express no opinion regarding the views expressed by the majority and the minority Judges in the above Punjab <ORG> decision, on this aspect. But we agree with the view of the majority when it has approved its earlier decision that pension is not a bounty payable on the sweet will and pleasure of the <ORG> and that, on the other hand, the right to pension is a valuable right vesting in a government servant. This Court in <CITATION> (1) had to consider the question whether a "cash grant" is "property" within the meaning of that expression in Arts. 19(1)(f) and 31(1) of the Constitution. This Court held that it was property, observing "it is obvious that a tight to sum of money is property".

Having due regard to the above decisions, we are of the opi- nion that the right of the petitioner to receive pension is property under Art. 3 1 (1) and by a mere executive order the <ORG> had no power to withhold the same. Similarly, the said claim is also property under Art. 19(1)(f) and it is not saved by sub- article (5) of Art. 19. Therefore, it follows that the order dated June 12, 1968 denying the petitioner fight to receive pension affects the fundamental right of the petitioner under Arts. 19(1)(f) and 31(1) of the Constitution, and as such the writ petition under Art. 32 is maintainable. It may be that under the Pension Act (Act 23 of 1871) there is a bar against a civil court entertaining any suit relating to the matters mentioned therein. That does not stand in the way of a Writ of Mandamus being issued to the <ORG> to properly consider the claim of the petitioner for payment of pension according to law.

To conclude: No relief can be granted in respect of the orders dated September 2, 1953 and March 5, 1960 as they are already covered by the decision of <ORG> dated May 4, 1967 in Second Appeal No. 640 of 1967. Even assuming that the contention of the petitioner that the order dated September 2, 1953 was not the subject of adjudication in the litigation leading up to the decision of <ORG>, in the second appeal, is correct, nevertheless, no relief can be granted as the order has been passed as early as 1953. Further, the representations made (1) [1968] 3 S. C. R. 489.

by him for cancellation of the said order have been rejected long ago. Further, there is no infringement of any fundamental right of the petitioner by that order. The order dated August 5, 1966 declaring under r. 76 of the Service Code that the petitioner has ceased to be in government employ is set aside and quashed. The order dated June 12, 1968 stating that under r. 46 of the Pension Rules, the <ORG> is unable to grant the petitioner pension is also set aside and quashed. As the petitioner himself claims that he has been retired from service on superannuation, a writ of mandamus will be issued to the respondents directing them to consider the claim of the petitioner for payment of pension according to law. The writ petition is allowed to the extent indicated above. The petitioner is entitled to his costs from the first respondent, the State of Bihar.

V.P.S. Petition allowed.


JUDGMENT <NAME>, J.

1. This Civil Miscellaneous Second Appeal arises out of a petition filed by the defendants in O.S. No. 12 of 1928 under Sections 47, 151 and Order 21, Rule 89 of the Code of Civil Procedure, in which they asked either that the <ORG> should not confirm the auction sale held in execution of the decree against them or that the <ORG> should set aside the sale under Order 21, Rule 89, Civil Procedure Code, for which they deposited 5 per cent, of the purchase money.

2. The property was sold in two lots; one lot was purchased by the decree-holders themselves who were respondents 1 and 2 to the petition, and the other lot was purchased by the 3rd respondent. <ORG> refused to confirm the sale so far as the first lot was concerned as the purchasers were decree-holders themselves, but with regard to the 3rd respondent to the petition, who is a <NAME> auction-purchaser, the <ORG> dismissed both the prayers in the petition. It is against this order that the present civil miscellaneous second appeal and civil revision petition have been filed. The 3rd respondent to the petition - the <NAME> auction-purchaser - is the only respondent in this <ORG>.

3. The facts necessary for understanding the contentions of the parties are these: Against the decree passed in the suit the petitioners preferred an appeal. During the pendency of the appeal, the decree-holders, i.e., respondents 1 and 2 to the petition, brought the properties of the petitioners to sale in execution of the decree and themselves purchased the first lot as already stated, while the second lot' was purchased by the 3rd respondent. The sale was held on the 3rd October, 1930. On the 16th October, 1930, <ORG> allowed the appeal and dismissed the suit. The present petition was filed by the petitioners on the 27th October, 1930, i.e., after the dismissal of the suit by <ORG> and before the confirmation of the sale.

4. On behalf of the appellants it is urged that since the decree has been set aside by <ORG> there is no jurisdiction for the <ORG> to confirm the sale. In the event of the sale being confirmed the petitioners request the <ORG> to set aside the sale and for that purpose they have deposited 5 per cent, of the purchase money. It will be observed that under Order 21, Rule 89, Civil Procedure Code, those who desire to have the sale set aside should in addition to the 5 per cent, make a deposit for payment to the decree-holder. This has not been done in this case because the petitioners contend that there is no necessity for making the deposit as the decree has been set aside on the date of the petition. The respondent contends that under the present Code the existence of a decree is not necessary for the confirmation of the sale and that the petition for setting aside the sale cannot be entertained unless the petitioners comply with the conditions of Order 21, Rule 89 by making all the necessary deposits mentioned therein, which admittedly they have not done. The respondent raises also a preliminary objection that no second appeal lies; but the appellant has filed also a civil revision petition. I shall deal with the preliminary-objection later.

5. The question to be decided with reference to the first prayer of the appellants in the petition is, whether the decree i under which the sale took place should still be subsisting at the time of the confirmation, for the sale to be confirmed. The argument on this point has mainly centred round the provisions of Section 65 and Order 21, Rule 94 of the present Code of Civil Procedure and of the corresponding provisions in the previous Codes. Section 65 of the present Code runs as follows:

Where immovable property is sold in execution of a decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute.

6. Order 21, Rule 94 of the Code is in these terms:

Where a sale of immovable property has become absolute, the Court shall grant a certificate specifying the property sold and the name of the person who at the time of sale is declared to be the purchaser. Such certificate shall bear date the day on which the sale became absolute.

7. These provisions have taken the place of Section 316 of the Code of 1882, which was as follows:

When a sale of immovable property has become absolute in manner aforesaid, the <ORG> shall grant a certificate stating the property sold and the name of the person who, at the time of sale, is declared to be the purchaser. Such certificate shall bear the date of the confirmation of the sale; and, so far as regards the parties to the suit and persons claiming through or under them, the title to the property sold shall vest in the purchaser from the date of such certificate and not before: provided that the decree under which the sale took place was still subsisting at that date.

8. It will be observed that the first part of Section 316 of the Act of 1882 is now represented by Order 21, Rule 94, Civil Procedure Code, with some slight alterations and its second part is represented by Section 65 with important alterations. There are two important differences between Section 65 of the present Code and the corresponding portion of Section 316 of the Code of 1882. One difference is that under the present Section 65 the property vests in the purchaser from the time when the property is sold and not from the time when the sale became absolute as under the old section. The other difference is that the statement in the old section that the property vests in the purchaser from the date of the certificate and not before was subject to a proviso "that the decree under which the sale took place was still subsisting at that date". This proviso is omitted in Section 65 of the present Code. The question is whether the dropping out of the proviso introduces any substantial change in law.

9. Mr. <NAME> argues that the omission of the proviso in Section 65 does not introduce any change in the law, that the existence of the decree has been always a necessary condition to give jurisdiction to the <ORG> to confirm the sale, that without a decree there can be no justification for the confirmation of the sale, that the principle is a general rule of jurisprudence that has always been recognised in the Civil Procedure Codes, that, that being so, the <ORG> thought that it was unnecessary to state it specifically and therefore dropped it out in the new Act of 1908. According to him, even before the proviso was enacted the rule contained in it was the law, that it was introduced only to settle some doubts that had arisen in the Bombay <ORG>s, that when it was discovered by the <ORG> that that had been the law always it omitted the proviso in the new Code, so that it is not right to say that the law has been now altered by its omission. Having regard to the arguments of Mr. <NAME> which I shall presently refer to, Mr. <NAME> also contends that there is no connection between the proviso and the time when the property vests in the purchaser.

10. Mr. <NAME>'s arguments may be summarised as follows: (a) Title to property vested in the purchaser from the date of the certificate under Section 316 of the Act of 1882; in order that title may start from that date it is a necessary preliminary that there should be a subsisting decree at that date and this was the reason why the <ORG> introduced the proviso "that the decree under which the sale took place should be subsisting at that date". If the decree did not subsist at the date of the -certificate then the purchaser will not get any title to the property. According to the law contained in this section the existence of the decree at the date of the sale will not be enough to vest title to the property in the purchaser, for the title starts from the date of the certificate and not from the date of the sale. (b) Under the present Code the title to the property vests in the purchaser when the sale becomes absolute from the time when the property is sold and not from the date when the sale becomes absolute, and so, it will be sufficient to give title to the purchaser if there is a subsisting decree at the date of the sale. The existence of a decree at the date when the sale becomes absolute being thus unnecessary, it is argued that the proviso was dropped in the present Code and therefore the sale can be confirmed even though there is no subsisting decree at the date of the confirmation. According to this argument there is thus an intimate relation between the necessity for the existence of the decree and the time when the property vests in the purchaser. This argument is met by Mr. <NAME> Aiyar - as already stated - by saying that even before the Act of 1882 the rule was that the title to the property vested in the purchaser from the time of the sale and notwithstanding that law the existence of the rule contained in the proviso was then recognised, (c) Another part of Mr. <NAME>'s argument has reference to Order 21, Rule 92, Civil Procedure Code, which says that where no application has been made under Rules 89, 90 or 91, or where such application is made and disallowed, the <ORG> shall make an order confirming the sale. It is argued that the language of the rule is imperative and that if after a sale, no application has been made to set it aside as in the present case, then the <ORG> is bound to confirm the sale and cannot refuse to do so on the ground that the decree has been set aside and does not exist or on any other ground.

11. I shall first consider the history of the "proviso" and then examine whether there is any necessary connection between the rule contained in it and the time when the property becomes vested in the purchaser, and lastly deal with the argument based on Order 21, Rule 92, Civil Procedure Code.

12. In this connection we need not go earlier than the Act VIII of 1859. The first part of Section 256 of the Act of 1859 says that no sale of immovable property shall become absolute until the sale has been confirmed by the <ORG>....

13. Section 259 states that after a sale of immovable property shall have become absolute in manner aforesaid, the <ORG> shall grant a certificate to the person who may have been declared the purchaser at such sale, to the effect that he has purchased the right, title and interest of the defendant in the property sold, and such certificate shall be taken and deemed to be a valid transfer of such right, title and interest.

14. Section 260 states that the certificate shall state the name of the person who at the time of sale is declared to be the actual purchaser....

15. The proviso appearing in Section 316 of the Act of 1882 did not find a place in any one of the above sections of the Act of 1859. Section 314 of the Act of 1877 corresponds with the first part of Section 256 of Act VIII of 1859. Section 316 of the Act corresponds with Section 259, and the first part of Section 260 of Act VIII of 1859. In the Act of 1877 also, we do not find the proviso appearing in Section 316 of the Act of 1882. This proviso was introduced for the first time by Section 49 of Act XII of 1879 which amended Section 316 of the Act of 1877. After amendment the section ran as follows:

When a sale of immovable property has become absolute in manner aforesaid, the <ORG> shall grant a certificate stating the property sold and the name of the person who at the time of sale is declared to be the purchaser. Such certificate shall bear the date of the confirmation of the sale; and, so far as regards the parties to the suit and persons claiming through or under them, the title to the property sold shall vest in the purchaser from the date of such certificate and not before: provided that the decree under which the sale took place was still subsisting at that date.

16. This amended section appears in the same form and language without any change as Section 316 in the Act of 1882. To complete the history, the proviso was omitted and Section 316 was split up into Section 65 and Order 21, Rule 94 in the Act of 1908 as already mentioned.

17. Mr. <NAME>'s argument already noticed is that though the proviso was first introduced by Act XII of 1879 the principle underlying it was recognised by <ORG> even before that date (under the Act of 1859) and that the amendment by introducing the proviso was only stating a principle that was already recognised and that when this was found to be so later, the proviso was dropped out as an unnecessary provision, that therefore no change in the law has taken place, and that even now, the existence of a decree is absolutely necessary for the confirmation of a sale. To support this contention in all its entirety the appellant will have to show not only that the principle of the proviso was recognised even before the amendment of the Act of 1877 but also that there was no necessary relation between the time when the title to property became vested in the purchaser and the rule contained in the proviso; or in other words, that even before the amendment when the principle of the proviso was used to be freely recognised and given effect to, the title to the property of the auction-purchaser used to relate to the date of the sale. The first part of the argument is sought to be supported by a decision of <ORG> in Basappa bin <CITATION> bin Shivlingaya (1878) I.L.R. 2 Bom. 540 and the second part is made to rest on a decision of <ORG> in <CITATION> (1876) I.L.R. 2 Cal. 141 (F.B.). The decision in Basappa bin <CITATION> bin Shivlingaya (1878) I.L.R. was under the Act of 1877 before its amendment by the Act XII of 1879 which introduced the proviso to Section 316 of the Act of 1877. In that case "plaintiff's title to certain land in dispute was derived from the purchaser at a <ORG>'s sale, under a decree which was reversed in appeal subsequently to the sale, but before it had been confirmed."

18. It was held that "the <ORG>, which had made the decree, ceased, from the moment of the reversal, to have jurisdiction to take any further steps to execute the decree," and that the confirmation of the sale would confer no title. In the course of the judgment the learned Judge pointed out that "a purchaser is bound to satisfy himself as to the jurisdiction of a <ORG> to order a sale, and this obligation continues until the sale is completed " (page 541.) It is argued that in this decision even without any enactment of a proviso like the one in Section 316 the principle was recognised and given effect to under the Act of 1877 and that it was on account of this decision the <ORG> enacted the proviso by the Amending Act XII of 1879. In this connection my attention was invited to the Report of the Select Committee that considered the Bill to amend the Civil Procedure Code, 1877. Therein the Committee stated:

We have also altered Section 316 so as to make it clear that the title to the property sold vests from the date of the certificate only when the decree under which the sale took place was still subsisting at that date. This will preclude the doubt which has, we understand, arisen in Bombay, where a certificate was granted to an auction-purchaser in ignorance of the fact that the decree under which the sale took place had been previously reversed on appeal.

19. Mr. <NAME>'s contention that the principle underlying the proviso in question was recognised by Courts even before the amendment may be conceded on the strength of this decision; but the question is, what was the law that prevailed then regarding the time when the property sold vested in the auction purchaser. Mr. <NAME> would say that at that time also, the law was that when property was sold in auction the purchaser's title to it commenced from the date of the sale. To this argument Mr. <NAME> responds that there was no settled law on that point during the operation of the Acts of 1859 and 1877 and so when the <ORG> decided to recognise the existence of the principle of the 'proviso' by introducing the amendment, it at the same time stated clearly the law relating to the time when the title of the auction-purchaser would commence, with the result that we find in Section 316 the law was stated to be this, that the title to the "property sold shall vest in the purchaser from the date of such certificate and not before, provided that the decree under which the sale took place was still subsisting at that time," thus establishing an intimate relation between the time when the property vests and the condition laid down in the proviso. The question is which view is right. In support of his contention Mr. <NAME> relied on the <ORG> decision in <CITATION> (1876) I.L.R. 2 Cal. 141 (F.B.). The facts of the case are thus stated in the headnote:

The defendant became a purchaser at an execution-sale of a share of certain property, of which the plaintiff held another share partly as Zemindar and partly as putnidar; the sale took place in September, 1872, but the defendant did not obtain possession until confirmation of the sale in May, 1873. Between the date of the sale and the confirmation, a considerable sum became due for <ORG> revenue on the whole property and to prevent its being sold the plaintiff paid the whole of the revenue due. In a suit to recover the proportion due in respect of the share purchased by the defendant, it was held, that, on confirmation of the sale, the share purchased by the defendant must be considered to have vested in her from the date of the sale; and, therefore, she was liable for the amount of <ORG> revenue in respect of her share which became due between the date of the sale and its confirmation.

20. It may appear at first sight that this decision supports Mr. <NAME>'s view, but the true scope and significance of the decision is thus explained in Mr. <NAME>'s Commentaries on the Civil Procedure Code of 1877 (see page 453):

The case was referred to a Full Bench because the decisions were conflicting on the point whether the title of the auction-purchaser under a decree relates back to the date of the sale see <NAME> v. <NAME> (1864) S.W.R. 279 or merely takes effect from the date of confirmation see <NAME> v. Judoonath Hazrah (1874) 21 S.W.R. 367 and it will be observed that this was not decided except for the purpose of the particular suit.

(The italics are mine.)

21. This Commentary puts the matter beyond any doubt. On the question under consideration there was no settled law under the Act of 1859 and the decision cannot be said to lay down a proposition of law applicable to all the cases. The same must be considered to be the position under the Act of 1877 also, for, as I have shown, the relevant provisions under both the Acts are similar and in neither of the Acts do we find any such specific statement of law regarding the time when the title to the property vests in the auction-purchaser as we find in Section 316 of the Act of 1877 after the amendment in 1879 - which was repeated as Section 316 of the Act of 1882 - and in the present Act of 1908. By Section 49 of the Amending Act of 1879 it was enacted that the title of the auction-purchaser to the property would start from the date of the certificate and in order that it may be so, formal recognition was given to the principle that there must be a decree in existence at the time of the certificate; and then the proviso came to be enacted as a necessary condition upon which would depend the commencement of the title of the auction-purchaser; and when the law on the latter point was altered, there was no need for the existence of the proviso and so it was dropped out from the new Code. This I think is the true history of the proviso in question, and read in this light I cannot agree with the contention of Mr. <NAME> that the omission of it in the present Code does not indicate any change in the law. On the other hand, from what I have said it follows that the argument of the respondent that on account of the omission of the proviso it is no longer necessary for the confirmation of the sale that the decree should be subsisting at the time of the confirmation should be accepted.

22. The next argument of the respondent's learned Counsel is that having regard to the language of Order 21, Rule 92, Civil Procedure Code, the reversal of the decree after sale but before confirmation cannot be relied on as a ground by the appellant for asking the <ORG> not to confirm the decree. Order 21, Rule 92 provides that where no application is made under Rules 89, 90 or 91, or where such application is made and disallowed, the <ORG> shall make an order confirming the sale, and thereupon the sale shall become absolute.

23. The language of this rule is imperative, and when no application under Rules 89, 90 or 91 has been made, as in the present case, after sale, it is the duty of the <ORG> to confirm it. Under this rule, the act of confirmation of sale should follow automatically after sale has taken place when no such application as is referred to in Rule 92 was made or when such application was made and disallowed. The present case admittedly does not fall under the exceptions mentioned in this rule. The reversal of the decree is not mentioned in the rule as one of the grounds for refusing to confirm the sale. This interpretation of Order 21, Rule 92 is supported by the decision of <ORG> in <CITATION> (1930) L.R. 58 I.A. 50 : 60 M.L.J. 423 (P.C.). In that case it was held:

Once a sale has been duly effected, it is not competent to the decree-holder and the judgment-debtor to get rid of it by merely asserting that the decree has been adjusted or satisfied out of <ORG>.

24. In holding so, their Lordships of <ORG> relied solely on Order 21, Rule 92 and the interpretation of the language thereof. In the course of their judgment the following observations occur:

When once a sale has been effected, a third-party interest intervenes, and there is nothing in this rule to suggest that it is to be disregarded. The only means by which the judgment-debtor can get rid of a sale, which has been duly carried out, are those embodied in Rule 89. That this is so is, in their Lordships' opinion, clear under the wording of Rule 92, which provides that in such a case (i.e., where the sale has been duly carried out), if no application is made under Rule 89 'the <ORG> shall make an order confirming the sale and thereupon the sale shall become absolute' " (p. 429).

25. It may be observed that their Lordships made no reference to cases under Rule 90 or 91 referred to in Rule 92 as these had no application to the case before them. To the same effect is the decision of <ORG> of <ORG> reported in <CITATION> (1928) 111 I.C. 895. The learned Judges in that case held that the private satisfaction of a decree certified in <ORG> after sale of immovable property has been held and before the confirmation is ordered, does not extinguish the decree and prevent the <ORG> from confirming the sale where a third person has purchased the property bona fide at the auction sale. The judgment of that case discusses the question in all its detail. One of the grounds of the judgment is based on Order 21, Rule 92. The learned Judge <NAME>, A.J.C., states that the provisions of Rule 92 are imperative and the <ORG> cannot refuse to confirm the sale unless the requirements of Rules 89 and 90 are strictly complied with" (p. 897).

26. In the course of the judgment the same observation is repeated in a somewhat different language thus:

The provisions of Sub-rule (1) of Rule 92 of Order 21, Civil Procedure Code, also are peremptory. They cast an imperative duty on the executing <ORG> to make an order confirming the sale unless the conditions specified in Rules 89, 90 or 91 were fulfilled. Sub-rule (2) lays down the conditions under which alone the <ORG> is permitted to make an order setting aside the sale....(p. 898).

27. Later on the learned Judge observed as follows:

If the <ORG> had desired to refuse confirmation and veto the purchaser's rights on any grounds other than those mentioned in Rules 89, 90 or 91 of the Order, there was nothing to prevent it from providing for such a contingency in the Code. If it had intended to leave him to the mercy of the decree-holder and judgment-debtor by enabling them to defeat his rights and even to oust the <ORG>'s jurisdiction, by a private pact of their own, formed behind the purchaser's back, the Code would have expressly provided for the exercise of such a right. In my opinion the very absence of any such provision in the Code for vetoing or negativing the purchaser's rights under the <ORG>-sale itself constitutes the strongest proof of the absence, of any such intention (p. 899).

28. Mr. <NAME> tries to distinguish the case on the ground that it relates to a case of the private satisfaction of the debt by adjustment outside the <ORG>. But having regard to the imperative language of the provision contained in Order 21, Rule 92, the distinction is meaningless; and the reversal of the decree and the adjustment of it outside the <ORG> stand so far as the language of Rule 90 is concerned on the same footing; because, barring the cases mentioned in that rule the <ORG> cannot recognise, once a sale is held, any other ground for refusing to confirm it. This case is interesting because it deals also with the argument of Mr. <NAME> that I have already dealt with, vis., that by the "dropping out of the proviso" in the present Code no change in the law has been made by the <ORG> and that even under the present Code the subsistence of a decree at the time of the confirmation of the sale is a necessary condition for the sale being confirmed. Regarding this argument the learned Judge <NAME>, A.J.C., observed as follows:

If the intention of the <ORG> had been to make the acquisition of title by the auction-purchaser, contingent upon the decree being a subsisting decree at the date of the confirmation, there was no point in deleting the words to that effect from Section 316 of the old Civil Procedure Code when Section 65 of the new Code was in its stead enacted. All that appears to be necessary under (he Code from the point of view of third party purchasers is that to give them a good title at the date when the sale is held, the decree must be a subsisting decree. If that decree ceased to exist at the date of the sale there is no debt to recover and, therefore, the <ORG> loses its jurisdiction to sell the judgment-debtor's property, and consequently every sale held under such circumstances must be treated as a nullity.

29. To show that confirmation of a sale can be refused on grounds other than those mentioned in Rule 92, and therefore impliedly it can be refused if there was no subsisting decree at that time, and that therefore the argument based on the language of Order 21, Rule 92 should not be accepted, the learned Counsel for the appellant has drawn my attention to cases under Section 47 , Civil Procedure Code, mentioned in Mulla's Civil Procedure Code, at p. 160, under the heading "A judgment-debtor may seek to set aside a sale on grounds other than those mentioned above," the grounds 'mentioned above' being (1) on deposit under Order 21, Rule 89, (2) for material irregularity under Order 21, Rule 90, and (3) for fraud under Order 21, Rule 90. The significance of most of these cases can be explained with reference to their special facts; but I shall deal with four cases as the learned Counsel specially emphasised their importance in support of his contention. These cases are <CITATION> (1893) I.L.R. 21 Cal. 19, <CITATION> (1923) I.L.R. 47 Mad. 228 : 46 M.L.J. 104 ( <CITATION> (1923) I.L.R. 46 Mad. 853 : 44 M.L.J. 680 and <CITATION> (1919) 55 I.C. 547. <CITATION> (1893) I.L.R. 21 Cal. 19 and <CITATION> (1923) I.L.R. 47 Mad. 288 : 46 M.L.J. 104 (F.B.) may be dealt with together. The facts show that in these two cases the sale was held without giving notice to the judgment-debtor as required under the Code. It was held that such a sale was a nullity and therefore should be set aside. These are instances of cases where the <ORG> held that in law there was no sale at all. To such a class of cases Order 21, Rule 92 will not apply, cases to which that rule relates being only cases of valid sale "where no application is made under Rules 89, 90 or 91 or where such application is made and disallowed." <CITATION> (1923) I.L.R. 46 Mad. 583 : 44 M.L.J. 680 it was held that the <ORG> has inherent power to refuse to confirm the sale on the ground that it was misled in fixing the reserve price. This also may be treated as a case, having regard to the fact that the <ORG> was misled into passing an order for sale, where there has been no valid sale. <CITATION> (1919) 55 I.C. 547 it was held that "a sale held in execution of a decree for an amount in respect of which there was no decree existing at the time is illegal, and the <ORG> would be justified in refusing to confirm it." This was also a case where there was no valid sale as there was no decree justifying the sale at the time when it was held. To cases of this kind Order 21, Rule 92 will not apply. This is clearly pointed out by the learned Judges in their order. They state:

We do not think that that is contemplated by Order 21, Rule 92. Order 21, Rules 89, 90, 91 and 92 pre-suppose a valid decree under which the sale is held, and the first three rules provide for setting aside the sales, and Rule 92 says that if there be no application for setting aside the sale, or such an application is made and disallowed, the sale shall be confirmed. Rule 92 does not affect the power of the <ORG> to refuse to confirm a sale, or make it compulsory to confirm the sale when the <ORG> finds that the sale is held under a decree which did not authorise the sale.

30. None of these cases can therefore help the appellants. Having regard to the decision of <ORG> in <CITATION> (1930) L.R. 58 I.A. 50 : 60 M.L.J. 423 (P.C.) I must hold that under Order 21, Rule 92, Civil Procedure Code, where no application is made under Rules 89, 90 or 91 to set aside a valid sale, the Court is bound to confirm the sale and cannot refuse to do so on the ground that there was no subsisting decree at the time of the confirmation or on any other grounds; for the language of the rule is imperative.

31. For the above reasons the first prayer in the appellants' petition asking the <ORG> to refuse to confirm the sale on the ground that the decree was reversed in appeal had to be disallowed. In this connection I may draw attention to the opinion expressed in <NAME>'s Civil Procedure Code which supports this view. At p. 218 of the 9th Edition of the book the learned author expresses the following opinion referring to Section 316 of the Code of 1882:

On referring to Section 316 of the Code of 1882 (p. 213) it will be observed that it contained a proviso the effect whereof was stated to be that a sale could not be confirmed if, at the time of application for confirmation, the decree under which the sale was effected had ceased to be a subsisting decree. That proviso has not been reproduced in the present section. Under the present section therefore a sale held in execution of a decree may be confirmed, in any event where the purchaser is a third party, though the decree has been reversed before confirmation of the sale. See Order 21, Rule 92 and note the words ' the <ORG> shall make an order confirming the sale'.

32. In an earlier page, at p. 214, referring to the omission of the proviso to Section 316 when dealing with Section 65 of the present Code it is stated:

that it is therefore no longer necessary that the decree should be subsisting at the time of the confirmation of sale.

33. The opinion of Sir <NAME> is therefore against the contention of the learned Counsel for the appellant. It is but fair to say here that Mr. <NAME> in his commentaries on the Code of Civil Procedure takes a different view. He says that the omission of the proviso does not introduce any change in the law.

34. I shall now deal with the alternative prayer for setting aside the sale contained in the appellants' petition. The appellants ask the sale to be set aside on the contingency of the <ORG> confirming it. There are various objections in granting this alternative prayer. It has been held in <CITATION> (1927) I.L.R. 7 Pat. 30 that a person who impeaches the validity of the sale cannot file an application under Order 21, Rule 89, Civil Procedure Code. In that judgment it is pointed out that when the payment is made under Rule 89, the person making the payment must accept the validity of the sale. He cannot make a payment under Order 21, Rule 89, and at the same time challenge the validity of the sale. A payment under Rule 89 must be an unconditional payment....

35. This case has been followed in this Court in <CITATION> (1930) 59 M.L.J. 893. There is a still more serious objection to the grant of the appellants' alternative prayer. The appellants have deposited only 5 per cent, of the purchase money for payment to the purchaser. Under Order 21, Rule 89, Civil Procedure Code, if the appellants wish to set aside the sale they should deposit not only 5 per cent, of the purchase money but also should make a deposit of the sum mentioned in Clause (b) for payment to the decree-holder. This has admittedly not been done by them in this case. They refuse to make this deposit because they say that the decree has been set aside and that therefore the decree-holder is not entitled to get any amount. But that consideration cannot in any way affect their obligation to deposit the amount under the Rule. This really shows the inconsistency of the alternative prayers contained in the appellants' petition. For, in an application under Order 21, Rule 89 the petitioners cannot be heard to say that the sale which they seek to set aside is invalid and unless they are permitted to do this, they cannot be absolved from the statutory duty of depositing the amount mentioned in Sub-clause (b) of Clause (1). Those who impeach the sale, as already pointed out, cannot apply under Order 21, Rule 89. It has been held in <CITATION> (1915) I.L.R. 39 Mad. 429 : 28 M.L.J. 262 that a judgment-debtor who wishes to take advantage of the provision under Order 21, Rule 89 must strictly comply with the same, by paying all the amounts as directed by the Rule....

36. The two cases relied on by the learned Counsel for the appellants, <NAME> v. Pacha Lakshmiamma 1912 M.W.N. 756 and <CITATION> (1913) 24 M.L.J. 205, which show that it is not necessary to make all the payments mentioned in Sub-clauses (a) and (b) to Clause (1) of Order 21, Rule 89 have been distinguished in this case. The learned Judges state that <CITATION> (1913) 24 M.L.J. 205 only decides that where a decree-holder had agreed to give up a portion of the decree amount, he was not entitled to insist upon the deposit or payment of the full amount mentioned in the proclamation of sale. About the case in <NAME> v. Pacha Lakshmiamma (1912) M.W.N. 756 they point out that "in that case an agreement by the decree-holder to set off a portion of the decree amount was held to amount to payment". It is clear that these two cases do not show that the payment required under Order 21, Rule 89 need not be made. The present case does not fall within the scope of either of these decisions. The decision in <CITATION> (1921) 42 M.L.J. 71 accepts the strict view of Order 21, Rule 89 held in <CITATION> (1915) I.L.R. 39 Mad.429 : 28 M.L.J. 262. The same view of Order 21, Rule 89 is entertained by <ORG> also. <CITATION> (1921) I.L.R. 46 Bom. 171 it was laid down:

The provisions of Order 21, Rule 89 being a concession allowed to judgment-debtor must be strictly complied with in order to enable the judgment-debtor to obtain the advantage of the concession.

37. This decision was followed in <NAME> v. Jagannath A.I.R. 1929 Bom. 215. In this connection my attention was drawn by Mr. <NAME> to the decisions in <NAME> v. <NAME> (1898) I.L.R. 22 Mad. 286 and <CITATION> (1899) I.L.R. 26 Cal. 449 (F.B.) also. These also support the view contended for by the respondent. As the appellants have not deposited all the amounts required under Order 21, Rule 89, Civil Procedure Code, the-alternative prayer asked for in their petition cannot be granted. In the result, both the prayers of the appellants have to be refused.

38. I shall now deal with the preliminary objection raised by the respondent that no second appeal lies. The objection is not of much importance as the appellants have filed a Civil Revision. Petition also, and if <ORG> order is wrong this Court may well interfere with it under Section 115 , Civil Procedure Code, as the question involved is without doubt a question of jurisdiction, namely, whether the Court has jurisdiction to confirm a sale when the decree on which the sale is based has been reversed in appeal subsequent to the sale and before its confirmation. But the respondent presses the preliminary objection for another reason, and it is this, namely, that if I hold that there is no second appeal and therefore deal with the case as a Civil Revision Petition, then my order will be final and not be subject to any further appeal; but if I deal with the case as a second appeal then the order passed by me will be subject to a Letters Patent Appeal provided I give permission to file an appeal. This technical advantage which he hopes to get is of course dependent upon the assumption that the appellants' case is going to be dismissed. If the appellants succeed then the preliminary objection will certainly re-act against the respondent. However, as the question has been raised I will deal with it.

39. If the appellants' petition to <ORG> is to be considered as one under Order 21, Rule 89, then it is clear that there is only one appeal under the Code against the order that may be passed upon it and against the appellate order only a revision under Section 115 , Civil Procedure Code, can be filed and not a second appeal. But the appellants have filed their application under Section 47 , Civil Procedure Code, also. It is argued by the respondent that the contest being between the judgment-debtors and the auction purchaser, having regard to the <ORG> decision in <CITATION> (1919) I.L.R. 43 Mad. 107 : 38 M.L.J. 32 (F.B.), which holds that a stranger auction-purchaser is a representative of the judgment-debtor it must be held that the question does not arise between "parties to the suit" and that therefore one of the conditions for the application of Section 47 , Civil Procedure Code, lacking, the petition does not lie under that section. At first sight this objection seems to be insurmountable, but having regard to the explanation put upon the <ORG> decision by a Bench of this Court subsequently this objection has to be overruled. The scope of the <ORG> decision has been discussed in detail by <NAME>, J., in <CITATION> (1921) 41 M.L.J. 120, where the learned Judge pointed out that the <ORG> after holding that the stranger auction-purchaser is a representative of the judgment-debtor went further and held on the authority of the <ORG> decision in <NAME> v. <NAME> (1892) L.R. 19 I.A. 166 : I.L.R. 19 Cal. 683 (P.C.) that irrespective of any question of the representative character of the auction-purchaser-applicant, Section 47 , Civil Procedure Code, should be applied to his case where the question raised is one relating to execution, and is one in which the decree-holder and the judgment-debtor are adversely interested.

40. The learned Judge ends his discussion of the question with this observation:

<ORG>, as I understand them, hold that the condition in Section 47 , Civil Procedure Code, that the question should be one 'arising between the parties' is satisfied by the question being one of a nature in which the parties to the suit are adversely interested, though the person actually raising it in any particular case against one party may not be the representative of the other party. In fact they gave an extended meaning to these words.

<NAME>, <NAME>

41. Concurred with the opinion of <NAME>, J., stating that he was not prepared to dissent from his view though he was inclined to think that the <ORG> judgment extended the applicability of Section 47 , Civil Procedure Code, to a degree hardly suggested by the wording of the section. In this case there can be no doubt that the question for decision is one of a nature in which the auction-purchaser and the judgment-debtors are adversely interested and it therefore follows that the petitioners' application would fall under Section 47 , Civil Procedure Code; and if so, an appeal against the first Court's order will lie to the appellate Court and against that Court's order a second appeal will lie to this Court, the order passed on an application under Section 47 being in the nature of a decree. As against this contention of the appellants based on the interpretation of the <ORG> judgment as given in <CITATION> (1921) 41 M.L.J. 120, Mr. <NAME> has called my attention to the decision in <CITATION> (1921) 13 L.W. 15, where it was held by <NAME> J., who was a party to the <ORG> decision, and <NAME>, J., subsequent to the <ORG> decision in <CITATION> (1919) I.L.R. 23 mad. 107 : 38 M.L.J. 32 (F.B.), that a question arising for decision between the judgment-debtor and auction-purchaser does not fall under Section 47 , and the decision thereon is not appealable. The judgment is a short one and the <ORG> decision is not discussed in it, nor does it refer to the later decision of this Court in <CITATION> (1919) I.L.R. referred to by <NAME>, J., in his judgment. For these reasons I am inclined to accept the decision in <CITATION> (1921) 41 M.L. in preference to the decision in <CITATION> (1921) 13 L.W. 13 L.W. 15. Mr. <NAME> draws my attention to a decision of mine where I upheld the preliminary objection and dismissed the civil miscellaneous appeal on the strength of the <ORG> decision in <CITATION> (1919) I.L.R. 43 Mad. 107 : 38 M.L.J. 32 (F.B.). But no attempt was made before me to distinguish the <ORG> decision, nor was my attention invited to the decision in <CITATION> (1921) 41 M.L.J. 120. The appellants' learned Counsel in that case accepted the preliminary objection and I therefore dismissed the second appeal. For the above reasons I would hold that in the present case a civil miscellaneous second appeal would lie.

42. In the result both the civil miscellaneous second appeal and the civil revision petition are dismissed, but the respondent will get his costs only in the civil miscellaneous second appeal.