1. This appeal is by the auction purchaser and is directed against an order of the learned Subordinate Judge refusing to record a compromise under Order 23, Rule 3, Civil P.C. The relevant facts are these : Respondent 2 obtained a decree for rent against respondent 1 and brought the holding to sale in execution. It was purchased by the appellant. Respondent 1 then made the usual application under Section 174, Ben. Ten. Act. While that application was pending, respondent 1 transferred her interest to two ladies who have been added as parties in this Court. The sale was set aside on 13th May 1939. The appellant appealed. While the appeal was pending, he entered into a compromise with respondent 1, by which the sale was to be restored and respondent 1 was to take away the money deposited in Court. The learned Subordinate Judge refused to record this compromise, because he thought that it was a fraud on the two ladies, the transferees of respondent 1. The difficulty has been created by the way in which the learned Subordinate Judge dealt with the matter. These two ladies applied to be substituted in the place of respondent 1. The learned Subordinate Judge refused either to substitute them or to add them as parties; but, having taken that course, he proceeded to deal with the matter as though they were parties and on the record. Now, it is quite clear that if the transfer by respondent 1 to these two ladies was a genuine transfer, the compromise could not be allowed for the simple reason that respondent 1 has no longer any interest in the matter and is not in a position to compromise. There can also be no doubt that if the transfer was a genuine one, the present compromise is a swindle, as one brother, the auction purchaser, keeps the land and the other brother, the judgment-debtor, keeps the money. The real question, therefore, is whether the transfer by respondent 1 to these ladies was a genuine transfer or not.
2. In opposing the appeal, Mr. Chatterjee contended that the remedy of the appellant is not by an application under Order 23, Rule 3, Civil P.C., but either by an application under Section 151 of the Code or a suit. If this contention is correct, the learned Subordinate Judge was obviously right in dismissing the application and the present appeal must fail. The question depends upon whether the application under Section 174, Ben. Ten. Act, is a proceeding in execution within the meaning of Order 23, Rule 4, Civil P.C. There is a decision by a Division Bench of this Court in Diljanmihha Bibee v. Hemanta Kumar ('16) 3 AIR 1916 Cal 613, to the effect that an application under Order 21, Rule 90 is not an application for execution and that Section 141 of the Code will apply. There is no difference in substance between an application under Order 21, Rule 90, Civil P.C., and Section 174, Ben. Ten. Act, and sitting here I am content to follow that decision. The order of the lower Court is accordingly set aside. The transferees will be added as parties. The Judge will then consider whether the transfer in their favour was a genuine transaction. If it was, he will reject the appellant's application. If it was not, he will record the compromise. Both sides will be at liberty to adduce evidence. Costs in this Court will abide the result, hearing-fee being assessed at one gold mohur.