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Sarat Chandra Das Vs. Mati Lal Chuckerbutty and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in52Ind.Cas.237
AppellantSarat Chandra Das
RespondentMati Lal Chuckerbutty and ors.
Cases ReferredAbdul Aziz v. Tafajaddin
Excerpt:
civil procedure code (act v of 1908), order xxi, rules 89, 90 - civil procedure code (act xiv of 1882), sections 310a, 311--bengal tenancy act (viii of 1885), section 170--execution of decree--sale of taluq--tenure-holder, whether entitled to apply to set aside sale. - .....eastern bengal and assam tenancy act and the petitioner applied under order xxi, rule 89, of the civil procedure code to have the sale set aside on deposit of money under that section.2. the case comes from the district of backergunge.3. section 170 of the eastern bengal and assam tenancy act does not exclude the operation of section 310a (corresponding to order xxi, rule 89, of the present code of civil procedure) to a tenure or holding attached in execution of a rent decree, as is done by section 170 of the bengal tenancy act. order xxi, rule 89, civil procedure code, therefore, applies to a sale held for arrears of rent in eastern bengal and assam, and the question for consideration is whether an under-tenure comes within that rule. order xxi, rule 89, says: 'where immoveable.....
Judgment:

1. The petitioner in this Rule held a permanent under-tenure in a taluk. It was sold in execution of a decree for arrears of rent under the provisions of the Eastern Bengal and Assam Tenancy Act and the petitioner applied under Order XXI, Rule 89, of the Civil Procedure Code to have the sale set aside on deposit of money under that section.

2. The case comes from the District of Backergunge.

3. Section 170 of the Eastern Bengal and Assam Tenancy Act does not exclude the operation of Section 310A (corresponding to Order XXI, Rule 89, of the present Code of Civil Procedure) to a tenure or holding attached in execution of a rent decree, as is done by Section 170 of the Bengal Tenancy Act. Order XXI, Rule 89, Civil Procedure Code, therefore, applies to a sale held for arrears of rent in Eastern Bengal and Assam, and the question for consideration is whether an under-tenure comes within that rule. Order XXI, Rule 89, says: 'Where immoveable property has been sold in execution of a decree, any person, either owning such property or holding an interest therein by virtue of a title acquired before such sale, may apply to have the sale set aside.' We think that a person holding a permanent under-tenure in the property sold holds an interest therein. His rights are undoubtedly affected by the sale; in fact it can be annulled by the purchaser. In the case of Paresh Nath Singha v. Nabogopal Chattopadhya 29 C. 1 (F.B.) : 5 C.W.N. 821 it was held by the majority of the Full Bench that a mortgagee of a tenure or holding sold in execution of a decree for arrears of rent due in respect of it is entitled to make an application under Section 310A of the Code of Civil Procedure as being a person whose immoveable property has been sold within the meaning of that section. That case is one of a simple mortgage, but it lays down the principle that a person having an interest in the property is entitled to come in under Section 310A.

4. It is to be noted that under Section 310A, the words were 'any person whose immoveable property has been sold,' and the Order XXI, Rule 89, which has replaced that section says: 'any person either owning such property or holding an interest therein etc.' We think that these words are more comprehensive than the words of Section 310A. In the case of Narain Mandal v. Sourindra Mohan Tagore 32 C. 107 Brett and Mookerjee, JJ., held that when a mokarari tenure is sold in execution of a decree for arrears of rent, a darmokararidar has a right to come in and make a deposit under Section 310A of the Civil Procedure Code, being a person whose immoveable property has been sold within the meaning of that section. In the case of Chandra Kumar Nath V. Kamini Kumar Ghose 11 C.W.N. 742 Maclean, C.J., and Fletcher, J., following the case of Narain Mandal v. Sourindra Mohan Tagore 32 C. 107 held that an under raiyat can apply under Section 310A of the Civil Procedure Code as being a person whose immoveable property has been sold in execution of a decree for arrears of rent due in respect of the superior holding.

5. In any case, we do not think that the scope of Order XXI, Rule 89, is narrower than that of Section 310 A of the old Code, under which it has been held that a person in the position of the petitioner can apply under that section.

6. Reliance is placed on behalf of the opposite party on the decision of the case of Administrator General of Bengal v. Mahomed Kholil 5 C. W.N. cxxxii (132). That case was decided before the Full Bench case of Paresh Nath Singha v. Nabogopal Chattopadhya 29 C. 1 (F.B.) : 5 C.W.N. 821 and, therefore, cannot be accepted as an authority in support of the contention raised on behalf of the opposite party; and upon this ground the learned Judges in the case of Narain Mandal v. Sourindra Mohan Tagore 32 C. 107 distinguished that case.

7. In the case of Abdul Aziz v. Tafajaddin 23 Ind. Cas. 839 : 19 C.W.N. 326 the learned Judges (Mookerjee and Beachcroft, JJ.) observed that 'the rule formulated in Rule 90, Order XXI, Civil Procedure Code, has a wider scope, and is of a mere comprehensive character than the rule laid down in Section 311 of the Code of 1882', because the expression 'a person whose interests are affected by the sale' in Order XXI, Rule 90, of the present Code has obviously a wider impart than the expression 'a person holding an interest in the property sold' in Section 311 of the old Code. That may be so; but that does not affect the construction of Order XXI, Rule 89, in any way: and so far as the scope of the present Rule 89, Order XXI, goes, we think that it is at any rate not narrower than that of Section 310A of the old Code. We are accordingly of opinion that the petitioner had locus standi to make the application under Order XXI, Rule 89.

8. The order of the Court below must be set aside and the case sent back to the Court of first instance for disposal of the application according to law.

9. Costs, one gold mohur, to abide the result. The Rule is made absolute.


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