1. The facts from which these rules arise are briefly the following: One Khalil Mohamed held an ordinary raiyati jote under the petitioner at a rental of Rs. 3-3-6. Opposite parties 1 to 4 got a money decree against opposite parties 5 to 10, the heirs of the said Khalil Mohamed, and put up the jote to auction in execution of the decree and purchased it on 11th July 1939. The sale was confirmed on 10th August 1939, and possession was delivered to the decree-holder auction-purchaser on 11th May 1940. On 29th May 1940, opposite party 5 filed an application under Order 21, Rule 90, Civil P. C. On 31st August 1940, the case was disposed of in terms of a compromise between the parties. The terms of the compromise are not before us. On 5th May 1941, the petitioner got notice of the sale, apparently by receiving Re. 1 only as landlord's fee. On 23rd October 1941, the petitioner filed an application under Section 35, Sylhet Tenancy Act, against opposite parties 1 to 4 for a decree for Rs. 89 only, being Rs. 45 payable as his percentage of the purchase price, and compensation of the same amount, under the provisions of Sections 30 and 31, Sylhet Tenancy Act, less Re. 1 already deposited and received on the allegation that the jote was a raiyatr jote at fixed rent. The application being rejected, the petitioner moved this Court under Section 115, Civil P. C, on 15th April 1942, a rule was issued (civil Revision No. 530 of 1942) and on the rule coming up for hearing our learned brother Henderson J., after hearing Dr. Sen Gupta in part, adjourned the matter for a month to enable him to file an application against the order setting aside the sale. On the latter application a further rule was issued which is Rule NO. 987 of 1942. It will be evident that the two rules are necessarily interconnected.
2. Dr. Sen Gupta for the petitioner first drew our attention to the decision reported in Sarat Chandra v. Sambhunath : AIR1934Cal36 : as authority for the proposition that the setting aside of the sale by compromise did not affect the right of the landlord to his transfer fee. Apart from certain facts special to that decision, the material portion of the decision is, so far as we are at present concerned, that on a sale being set aside by a private arrangement between the judgment-debtor and the auction-purchaser, the latter could not get a refund of the landlord's fee. That decision, so far as it is at present material, however, is an authority only for the proposition that on the facts of that case, the landlord having in fact obtained his landlord's fee, the Court would not force him to refund it to the auction-purchaser. This does not take Dr. Sen Gupta very far on his road. His submission is that if the sale had been set aside for fraud or the like, it would be a nullity but that where the sale has been set aside by compromise the sale is not a nullity. If the submission is correct, then there have been two transfers, one effected by the original sale and a re-transfer effected when the sale was set aside. This aspect was indeed alluded to at the opening of the arguments but was not persisted in. It would certainly be a novel proposition that on a sale being set aside by compromise a landlord is entitled to two transfer fees under the Sylhet Tenancy Act, one for the original sale and the second on a re-transfer arising by virtue of the original sale being set aside. In our view, the argument of the learned advocate for the respondent is sounder, namely, that on the sale being set aside, for whatever cause, it becomes ineffective; therefore, in the eye of the law there is no sale, and, therefore, in the eye of the law there can be no landlord's fee. Indeed, the issue of the second of the rules now under disposal emphasises the aspect that the petitioner has no status unless and until the order setting aside the sale is itself set aside.
3. The remaining argument for the petitioner was that the Court acted without jurisdiction in setting aside the sale on a compromise between the judgment-debtor and the decree-holder without bringing the landlord into the transaction. Dr. Sen Gupta referred to the case reported in Armada Charan De v. Sm. Mahalakshmi De : AIR1934Cal795 : where it was held that a landlord who had received notice of a transfer by money sale and who has filed a petition for pre-emption under Section 26F, Ben. Ten. Act, was entitled to contest an application for setting aside the sale. In that case, however, the landlord was in fact heard and the question was whether he was entitled to be heard. It does not cover the facts of the present case. We have asked Dr. Sen Gupta to draw our attention to any provision in the Code of Civil Procedure or the Sylhet Tenancy Act to the effect that the landlord is required by law to be made a party to such applications as those from which these rules have arisen. He has not shown us such a provision and to our Knowledge there is no such provision. The result is that the applications fail on both grounds. The rules are accordingly discharged with costs, hearing-fee one gold mohur in each case.
4. I agree.