The applicability of Section 23 to sales under any decree of Court and the circumstances under which a second appeal would lie.

Wadsworth, J.

1. This appeal arises out of an application under Section 23 of Madras Act IV of 1938. The sale in question was in execution of a decree under the Madras Estates Land Act and the principal contention of the appellant in the trial Court was that Section 23 does not apply to sales under the Estates Land Act. That question has been settled in Polisetti Venkataratnam v. Dhulipudi Surya Rao AIR1941Mad500 . and it must now be held that Section 23 applies to sales under any decree of Court. Before going into the merits of the appellants case, it has to be decided whether this Court can, on this appeal, go into the question of the correctness of the trial Courts order. The trial Courts order was taken up in appeal to the District Judge. The District Judge, without considering the competence of the appeal,. dismissed the appeal on the merits and it is argued that this decision gives rise to a right of second appeal. It is well-established that when a lower appellate Court entertains an appeal which is not competent and modifies the decision of the trial Court, a second appeal will lie. See Bandiram Mookerjee v. Purna Chandra Roy I.L.R.(1917) Cal. 926. Jwala Prasad v. Salig Ram I.L.R.(1891) All. 575. and Ram Ratan Prasad v. Banarsi Lal I.L.R.(1929) Pat. 685. But it is doubtful whether such a second appeal will lie when the lower appellate Court has dismissed the appeal preferred to it. Certainly if the lower appellate Court dismissed the appeal as incompetent, there is no apparent reason for entertaining a second appeal against that decision. It is argued that if the lower appellate Court wrongly entertains the appeal and dismisses the appeal on the merits, the decision would give rise to a right of second appeal just as if the lower appellate Court had interfered with the trial Courts order. Some authority for this proposition is found in a decision of Walsh, J., in Nachimuthu Chettiar v. Ramakkal AIR1933Mad475 . which quotes the words in Ram Ratan Prasad v. Banarsi Lal I.L.R.(1929) Pat. 685. to the effect that a second appeal will lie whatever be the nature of the order passed by the lower appellate Court. But the Patna case was dealing with a contention that there would be no second appeal if the lower appellate Court has merely remanded the case. It was not dealing with a case in which the. lower appellate Court has dismissed the appeal. Whatever be the correct view on the question-whether the dismissal of an incompetent appeal will give rise to a right of second appeal, it seems to me that the question is largely academic; for if the District Judge wrongly entertained an appeal and dismissed that appeal on the merits, the only order which can properly be passed in second appeal would be to set aside the incompetent appellate order. There is no apparent justification for going into the merits of the trial Courts order, which is unaffected by the incompetent appellate decision. Should this Court, when hearing a second appeal against an incompetent appellate order come to the conclusion that the trial Courts order is wrong on the merits, in a proper case this Court will no doubt interfere in revision with the order of the trial Court. But in second appeal the only thing which this Court can properly do is to set aside the incompetent appellate order.

2. On the facts of the present case, it does not appear that there are any grounds upon which the revisional jurisdiction of this Court can be invoked against an order of the trial Court. In this view I dismiss the appeal with costs.