JUDGMENT

Mir Ahmad, J - On 27-2-1937 Ram Saran obtained a preliminary decree under Order 34, Rule 4, Civil P.C., for Rs. 2600 with costs and future interest against Ram Dass and Shirimati Dhan Devi. The final decree was passed on 24-8-1988, and house No. 2455 was ordered to be sold, subject to the right of residence of Mt. Hakam Devi. The sale was held on 11-11-1942, and Jhangi Ram purchased the house for Rs. 5500. He paid 25 per cent, of the purchase price to the auctioneer. On 16-11-1942 he applied under Order 21, Rule 90, Civil P.C., for the cancellation of the sale, alleging that the sale proclamation was not affixed at the spot, and that no one informed him at the sale that Mt. Hakam Devi had a right of residence in the house. The decree-holder and the judgment-debtors resisted the application. It was pleaded that no such application was competent, and that the auction-purchaser had full knowledge that the house was being sold subject to the right of residence of the woman. It was further alleged that no material irregularity or fraud had occurred in publishing and conducting the sale. The execution Judge pointed to the conflict amongst the High Courts in India as to the competency of such applications. He remarked that it was the practice in the Courts in N.W.F. Province to follow Lahore High Court in case of such conflict. He, therefore, adopted the view of the Lahore High Court, and held that the auction, purchaser could not make an application for the cancellation of the sale, but should file a suit for it.

2. On the merits he remarked that there was an entry in the sale proclamation that the house was being sold subject to the right of residence of Mt. Hakam Devi. He turned to the evidence of the auctioneer that all the formalities were duly observed, and that a woman was crying aloud at the time of auction that she had a right of residence in this house. He thought, therefore, that the auction-purchaser must have known that Mt. Hakam Devi had a right of residence in the house. He observed that at any rate he would have come to know of it, if he had made proper inquiry. As a result of these findings, he dismissed the application, and confirmed the sale. The auction-purchaser appealed to the District Court. An Additional Judge who heard the appeal agreed with the view of the original Judge both on the legal point and on merits. He referred to the facts that the auction-purchaser lived at 400 yards from the house in dispute, and that Mt. Hakam Devi had gone through a long drawn litigation to obtain her right. He concluded from these facts that the auction-purchaser must have had the knowledge of the woman's right. He, therefore, dismissed the appeal.

3. The auction-purchaser has come up on further appeal to this Court. Learned Counsel for respondent 1 has raised a preliminary objection that no further appeal lies. He has urged that the decision of the execution Judge amounted to an appealable order, that there is only one appeal from such order and that there is no provision of law allowing a further appeal from it. Learned Counsel for the appellant has not been able to cite any authority in support of his allegation that a further appeal lies from the decision of the District Court on an appealable order. We hold that further appeal is not competent. We convert the appeal into a revision petition. The first question to consider is one of law, i.e., whether the auction-purchaser could get the sale set aside by an application under Order 21, Rule 90, Civil P.C., or should he bring a suit for the purpose. As stated above the High Courts in India differ on the point. We will first take up the cases in which the Judges have held that such application is competent, and will reproduce their reasons for arriving at this conclusion. They are as under:

Madras High Court:

Gopala Krishnayya v. Sanjeeva Reddy A.I.R. 1920 Mad. 145. The Judges pointed to the fact that a notice has to be issued to the auction-purchaser if there is an