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Jugal Chandra Anuni Vs. Ramesh Chandra Chakravarty and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1930Cal490
AppellantJugal Chandra Anuni
RespondentRamesh Chandra Chakravarty and ors.
Cases ReferredDelhi Cloth Co. v. Income
Excerpt:
- .....section 18, lim. act, had been shown. he did not decide any question as to the regularity of the sale proceedings but dismissed the application as out of time. the case being otherwise within section 153, ben. ten. act, chatterjea, j., took the view that the order of the munsif decided nothing about the regularity of the sale proceedings so that the explanation to section 153, had no bearing on the case; but he went further and held that the sale having been attacked on the ground of fraud as wall as on the ground of irregularity, any decision which dealt with question of fraud was not within the scope of the explanation. he held therefore, that there was a right of an appeal because the question was a question not merely of irregularity but also a question of fraud. mullick, j.,.....
Judgment:

Rankin, C.J.

1. I think this Eule must be made absolute. The petitioner before us is a tenant against whom his landlord brought a rent suit for a sum under Rs. 50 before a Munsif who was specially empowered under Section 153, Ben. Ten. Act. Having recovered his decree, the plaintiff landlord proceeded in execution to put the tenancy to sale and purchased it himself at a sale in execution on 12th April 1926. On the 16th March 1928, some two years later, the tenant, petitioner before us, applied before the specially empowered Munsif under Order 21, Rule 90, Civil P.C., to have the sale set aside. He made no case in his application that the sale was null and void apart from the, Circumstances which were properly within the scope of Rule 90 no case to the effect that the parties had not been brought before the Court or that the proceedings were entirely without jurisdiction. His case was that there had been suppression of processes and that the sale was held at a gross under value. The matter was tried by the Munsif whose order is dated I8feh March 1929. There was in this case not only a delay of two years before the application was brought but a delay thereafter of one year before it was disposed of in the trial Court.

2. It appears that the suit when brought against the tenant was brought against him on the footing that he was a minor and a certain person was appointed his guardian-ad-litem. In the execution proceedings, to procure a sale, another person was described as the guardian of the minor, but no steps were taken in the execution proceedings to constitute this other person as guardian of the minor.

3. The Munsif dealt with the case as being one on the usual grounds of material irregularity, fraud and substantial injury. He found that the judgment-debtor was a minor and that, although in the execution proceedings one Malik Kola was described as the guardian of the minor, no notice was served on him nor was any step taken to appoint a Court guardian. He said that this was a serious defect in the proceedings in the execution case. It is clear to me that he treated that as an irregularity within the meaning of Rule 90, Order 21, Civil P.C. He pointed out that the value in the sale proclamation was stated as Rs. 50. There were 7 bighas of land and the Munsif was of opinion that something like Rs. 100 per bigha was on the evidence the reasonable price. He treated this undervaluation as a deliberate misstatement and he said that this deliberate misstatement of the valuation was also a material irregularity. So, he dealt with that element too as a finding of material irregularity. On the question whether proper notice of attachment was given and proper service of sale proclamation had been made he said:

I am not satisfied about the proper service of these processes,

and his conclusion was:

I find that there is material irregularity and considering that the 7 1/2 bighas land was sold for Rs. 70 only, I hold there was substantial injury.

4. So far, therefore, it is clear that the findings of the Munsif were confined to a finding of material irregularity. It is true that he noticed that the allegations of the petitioner were embroidered with certain insinuations as regards fraud and it is true that he described the under-valuation as a deliberate misstatement; but his finding and his treatment of the case was on the footing that this was an unessential element and that the substantive right to relief shown by the petitioner was material irregularity followed by substantial injury.

5. There was, however, a further question before the Munsif. The petitioner tenant had to explain the two years' delay between the sale and the application. His case was that all notices had been suppressed, that the purchase by the decree-holder had been deliberately kept back from him and that he found it out only when reading a written statement filed by an under-tenant of his own in a suit for rent in which that under-tenant objected to the plaintiff's claim for rent, that the petitioner's interest had been sold in execution. The Munsif took the view that the petitioner's story on that point was true and that, owing to the decree-holder's fraud, the petitioner was kept out of knowledge in this regard till the date of the filing of the present petition. On that finding, he gave to the petitioner the benefit of Section 18, Limitation Act.

6. Now, the question, in these circumstances is : Did an appeal lie to the District Judge from the order of the Munsif which I have attempted to describe with precision? We need take no notice of what the District Judge said. The question is on these materials, did an appeal lie to the District Judge at all? Ordinarily, a first appeal does lie from a decision under Rule 90, Order 21, Civil P.C. and that by the plain terms of the Code of Civil Procedure itself. But by Section 153 Ben. Ten. Act, (I am referring for the present to the Act before the amendment of 1928) a restriction is put upon appeals. I observe that the sole function of the section is to restrict appeals and that that section gives to nobody any right of appeal to any Court. I make this observation because in the case of Aswini Kumar Dutta v. Raj Kumar A.I.R. 1297 Cal. 845, the learned Judges seem to have struggled with a contention that Section 153, Ben. Ten. Act, gives a right of second appeal from an order under Rule 92 Order 21, which is unknown to the Civil Pro. Code. That contention appears to me to be altogether out of the question.

7. Now, by Section 153, Ben. Ten. Act, in a ease such as the present, the right of appeal is prima facie taken away and there is no right to first appeal unless the appellant can bring himself within the exception contained in the following words:

Unless the order has decided a question relating to title to land as between parties having conflicting claims thereto.

8. Those words were first interpreted by this Court for the present purpose by the well-known decision of the Full Bench in the case of Kali Mondal v. Ramsarbeswar Chakravarti [1905] 32 Cal. 957. The general principle of that ruling was that where a decree-holder says : 'the land is mine because I have purchased it' and the judgment-debtor says : 'The land has not been validly sold to you and is still vested in me,' that is a question relating to title to land as between parties having conflicting claims thereto. After this decision, in the year 1907, the effect of that rule was cut down, to use a neutral expression, by the explanation added at the end of the section:

A question as to the regularity of the proceedings in publishing or conducting a sale in execution of a decree for arrears of rent is not a question relating to title to land between parties having conflicting claims thereto,

9. At the time this explanation was enacted, Section 311 of the Code of 1882 referred to material irregularity only. In 1908 the corresponding section, now Rule 90, Order 21, added after the words 'material irregularity' the words 'or fraud', the reason being that most of the applications to set aside sales were based on suppression of process and most of the allegations of suppression of process were accompanied by allegations of fraud. Accordingly it was contended that, where an application to set aside a sale was based on the ground of fraud, it was outside the scope to some extent of Section 311 of the Code of 1882 and had to be regarded as a matter coming within Section 47, so that in the presence of allegations of fraud there was a second appeal which was not granted by the Code to a case based on material irregularity alone. By adding the words 'or fraud' to the corresponding section the Code made it clear that allegation of fraud would not result in giving a party the benefit, if it be a benefit, of an additional appeal. Looking at the matter, however, at the time the explanation to Section 153 was enacted it is clear that the terms of that explanation had reference to the language of the old Code and consequently we find that the provision of Section 153, Ben. Ten. Act, is a provision to the effect that a question as to the regularity of the proceedings in publishing or conducting the sale is excluded from the category of questions which relate to title to land as between parties having conflicting claims thereto. In these circumstances the cases in which there are allegations of fraud have given rise to difficulties, no longer upon the question of the existence of the right of second appeal under Order 21, Rule 90, but upon the question of the existence or non-existence of an appeal in cases of small value under Section 153, Ben. Ten. Act, I may observe that no amendment of this Act not even the recent amendment of 1928, has in any way brought the language of this explanation into conformity with the amended language of Order 21, Rule 90, Civil P.C.

10. The cases in which this difficulty has arisen have been laid before us. The first case, the case of Beni Madhab Roy v. Bissesswar Bharti [1912] 17 C.W.N. 84, was not a case under Order 21, Rule 90, Civil P.C., at all. It was a case under the provisions of Section 174, Ben. Ten. Act, as it then stood, namely a question whether a judgment-debtor had brought into Court a sum adequate for the purpose of having the sale set aside on payment of the amount required by Section 174, and the decision in that ease was that the case raised no question of regularity of the proceedings in publishing or conducting the sale. The only question in that case was whether or not the judgment-debtor had brought into Court a sufficient sum to entitle him to have the sale set aside under Section 174. I see no reason to doubt the correctness of that decision. The next case was the case of Arjun Dass v. Gunendra Nath Basu [1914] 18 C.W.N. 1266. It was a case where execution proceedings had been started against a man who was dead and no notices had been served under Order 21, Rule 22. The view taken by the Court was that the sale was not merely voidable but void and that the question at issue in that case was not a mere question of the regularity of the proceedings in publishing or conducting the sale; so that the terms of the explanation of 1907 did not apply to that case. I see no reason to quarrel with that decision. Indeed it appears to me that there is much to be said for the view that Rule 90, Order 21, contemplates a valid decree and the Court validly entertaining execution proceedings for the enforcement of the decree. In the case of Nobin Chandra v. Bepin Chandra Roy [1915] 22 C.L.J. 244, however, we came to a decision that does bear closely upon the question now before us. In that case, as in this, a judgment-debtor applied out of time to set aside a sale on the ground of suppression of processes and he made a case that the fact had been kept from him by the fraud of the decree-holders with the result that he was entitled to the advantages conferred by Section 18, Lim. Act. The Munsif before whom the case was tried decided one question only whether or not concealed fraud within Section 18, Lim. Act, had been shown. He did not decide any question as to the regularity of the sale proceedings but dismissed the application as out of time. The case being otherwise within Section 153, Ben. Ten. Act, Chatterjea, J., took the view that the order of the Munsif decided nothing about the regularity of the sale proceedings so that the explanation to Section 153, had no bearing on the case; but he went further and held that the sale having been attacked on the ground of fraud as wall as on the ground of irregularity, any decision which dealt with question of fraud was not within the scope of the explanation. He held therefore, that there was a right of an appeal because the question was a question not merely of irregularity but also a question of fraud. Mullick, J., thought that the finding that there was no concealed fraud such as to confer an extension of time under Section 18, Lim. Act, was a finding which did not come within the explanation and that an appeal was accordingly competent. He disagreed, however, with Chatterjea, J., on the other point, holding that the mere fact that the irregularity was alleged to be or was, in fact, tainted with fraud did not exclude the case from the scope of the explanation. This case has been dissented from in two subsequent cases; but it appears to have been followed more than once. It appears to have been followed by Newbould and B.B. Ghose, JJ., in Midnapore Zemindary Co. v. Fakir Bisui Civil Revn. No. 393 of 1924. In that case there was an allegation of fraud. The Munsif dismissed the application on a mere question of defeat of parties. It was held that, notwithstanding Section 153, Ben. Ten. Act, the case was appealable, although the Munsif had given no decision on the question of fraud. A similar decision appears to have been given by Greaves, J., in the case of Jatiram Gayan Das v. Dina Nath Samdnta A.I.R. 1922 Cal. 163. In the case of Maharaj Bahadur Singh v. Kurani Mai : AIR1927Cal633 , Mukerji, J., and Roy, J., dissented from the doctrine of Nobin Chandra's case [1915] 22 C.L.J. 244 saying that fraud in publishing or conducting a sale is not meant to be kept separate from irregularities in the publication or conduct thereof for the purpose of the explanation to Section 153; and a similar view was taken by B.B. Ghose, J., and N.K. Basu, J., in the case of Jahir Mondal v. Radha Rangini Devi : AIR1928Cal859 , who held that the question as to regularity or irregularity of the proceedings in publishing or conducting a sale falls within the1 explanation to Section 153 whether the irregularity is due to fraud or negligence or any other reason; the explanation includes every ground affecting the regularity. In a subsequent case Mujibar Choudhury v. Reajuddi Matbar [1928] 107 I.C. 471, the matter came again before Mukerji J., and that learned Judge repeated the view which he had previously expressed in Maharaj Bahadur's case : AIR1927Cal633 .

11. In these circumstances Mr. Hiralal Chuckerbutty for the opposite party decree-holder contends before us that there was a right of appeal to the District Judge, notwithstanding the terms of the explanation to Section 153, Ben. Ten. Act, and he contends, in the alternative, that if we are not satisfied as to his right of appeal, the authorities are in such a condition that it would be reasonable to refer this question to a Full Bench in order that the differences of opinion disclosed by the cases to which I have referred may, if possible, be settled. It appears to me that, in the case before us, the position is that, while there was an allegation in the petition before the Munsif to the effect that the irregularities complained of were intentional and motived by fraud, the case made before the Munsif upon the substantive question of the petitioner's right to relief was a case based upon irregularity. The fact that notices of attachment were not served, that the sale proclamation was not served, the fact that no notice was given to the person put forward as the guardian ad litem these were the facts which, according to the petition, entitled the petitioner to relief. The Munsif has dealt with this part of the case entirely in that way. On this part of the case, there is no finding which goes beyond a finding of material irregularity and it is not until we come to the question of limitation that the Munsif in this case has acted in any way upon the view that fraud existed. The fraud that is material upon the question of limitation is not the fraud which occurred in the course of the sale proceedings but fraud by which there was concealed from the petitioner the fact of the sale and the methods which had been employed to effect it. It is fraud upon a different matter at a different time.

12. Having made that clear, it seems to me that we have to ask ourselves whether this is a case in which it is necessary or advisable to refer the matter to a Full Bench. It appears to me that, looking at the case for a moment apart from the decision upon the question of limitation, the present case is reasonably plain according to any interpretation of the section with which we are concerned. The decision of the Munsif was a decision entirely as to the regularitly of the proceedings. He set them aside as being irregular and accompanied by substantial injury and, so far, it seems to me that this case is plainly within the meaning of the explanation. It is quite true that a sale cannot be set aside merely on the ground of irregularity. There has to be substantial injury as well. But when the Bengal Tenancy Act says that the question as to the irregularity of the proceedings in publishing or conducting a sale is not a question relating to title to land, it does not mean that in every case under Rule 90, Order 21, Civil P.C., there is nevertheless to be an appeal because in every case under Rule 90 there must be a finding not merely as to the regularity of the proceedings but also as to substantial injury. Such an interpretation would give no meaning to the explanation consistent with the exception. Again, the explanation does not mean that, if in the course of deciding the question of regularity under Rule 90 the Munsif has to decide a question of limitation incidental to the application before him then the explanation ceases to take effect and the right of appeal emerges. The meaning of the explanation must at least be this: that where the decision holds that on the ground of irregularity in the sale proceedings the sale is to be set aside or that the sale must stand notwithstanding the allegations of irregularity therein, the case is not to be deemed to be one within the exception and consequently no right of appeal will exist. All we are concerned with in the present case is whether or not the Munsif in setting aside these proceedings for irregularity made an order which is contemplated by the explanation. In my judgment, he did. If, in this case, the Munsif had proceeded on the ground of fraud, certainly, if he had proceeded upon any ground of fraud which could be said to be independent of any irregularity in the proceedings, it might perhaps have been advisable to refer this case to a Full Bench, In view, however, of the scope and character of the judgment of the Munsif, it does not seem to me that it is necessary or that it would be useful to treat this case as one in connexion with which the law on this subject could usefully be revised as a whole.

13. Reverting to the question under Section 18, Lim. Act, it is quite true that observations were made in Nobin Chandra's case [1915] 22 C.L.J. 244 upon that very matter. In that case, however, the Munsif had dismissed the petition holding that it was out of time, and he had made no finding on any question of regularity of the proceedings. Now I do not think that the case was rightly decided on that ground, but that case is not this case. In this case the Munsif's ultimate finding and the whole of the ultimate effect of his order is to set aside the sale on the ground of irregularity. He has dealt with the question of limitation under Section 18 just as he might have had to deal with an ordinary question of limitation, or defect of parties or estoppel or whether the petitioner had a locus standi to ask that the sale be set aside or with a number of other incidental questions which might be advanced by way of illustration. Does the explanation mean that there is to be a right of appeal in these petty oases in every case where any incidental matter such as limitation or locus standi has to be decided before the application under Rule 90 can be disposed of? The answer to that question must, in my judgment, be in the negative. In the end, the substance of the matter is that the question as to the regularity of the proceedings has been decided and the sale has been set aside for irregularity. Such proceedings, in my opinion, are intended to be proceedings which in petty cases are to be disposed of without appeal.

14. In these circumstances, it seems to me that the present rule should be made absolute.

15. I ought to add that, when this case came on for hearing originally, it came before me sitting singly and, on that occasion, it was intimated on the part of the opposite party that there were matters to consider under the Ben. Ten. Amendment Act, 1928, in view, particularly of the amendments made in Section 174 of the Act. It runs out, however, that nothing turns upon the amending Act. To begin with it appears that the application in this case was filed on 16th March 1928. The amending Act came into force on 21st February 1929. The order of the Munsif was on 18th March 1929. It would seem, therefore, that prima facie the matter, so far as rights of appeal are concerned, must be governed by the state of the law as it was on 16th March 1928 : Delhi Cloth Co. v. Income-tax Commissioner, Delhi . But, apart altogether from that, it does not appear that for the present purpose the amending Act makes any difference. The amending Act has left the explanation to Section 153 standing side by side with the provisions of Clause 5, Section 174, which gives a right of appeal from decisions upon orders to set aside sales which orders under the new Act are to be made under the section and no longer under Rule 90, Order 21, of the Code. These two sections have to be read together and there can in my judgment be no difficulty in saying that the special provisions of Section 153 with reference to cases of very small value are intended as exceptions to the general right of appeal which is dealt with by Clause (5), Section 174. It has to be remembered that prior to the amending Act the right of appeal in cases under Section 174 depended upon various facts on which in turn depended the question whether the ease was one within the terms of Section 47, Civil P.C. Complications have been swept away by making a clean provision that, in all cases dealing with setting aside of sales under the new Section 174, there is to be a right of appeal, and that is in itself a valuable amendment of the law. But there is no reason for thinking and, indeed, there is no possible way of construing the Act to the effect, that the explanation to Section 153 does not remain in full force and effect so far as regards cases of small value to which the section refers. There will be no order as to costs.

C.C. Ghose, J.

16. I agree.


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