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Sushil Kumar Ghatak Vs. Satya Gopal Chatterjee and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1940Cal329
AppellantSushil Kumar Ghatak
RespondentSatya Gopal Chatterjee and ors.
Excerpt:
- .....has a subsisting interest between the date of the sale and the date of the confirmation of the sale. the purchaser from the judgment-debtor after the date of the sale and before the confirmation of the sale, therefore, acquires the subsisting interest of the judgment-debtor. if the sale be not set aside, that is to say, if the sale be confirmed, the interest which the purchaser has got from the judgment-debtor would be affected by the sale in the same way as the interest of the heirs of the judgment-debtor if he dies after the sale would be affected. we are therefore of opinion that the learned subordinate judge was right in holding that the purchaser at a private sale after the auction sale has locus stand to get the sale set aside under section 174, clause (1), ben. 'ten. act. the.....
Judgment:
ORDER

1. The only point for determination in this rule is whether a purchaser by a private treaty from a judgment-debtor after sale of an agricultural holding under Chap. 14, Ben. Ten. Act, is entitled to gets the sale set aside under Section 174, Clause (1) of that Act. That clause is in these terms:

Rules 89 and 90 of Order 21 in Schedule 1 to the Civil P.C., 1908, shall not apply in cases where a tenure or holding has been sold for arrears of rent due thereon, but in such cases the judgment-debtor, or any person whose interests are affected by the sale, may at any time within 30 days from the date of the sale, apply to the Court to set aside the sale, on his depositing-

(a) for payment to the decree-holder the amount recoverable under the decree up to the date when the deposit is made with costs; and(b) for payment to the auction-purchaser, as penalty, a sum equal to five per cent, of the purchase money, but not less than one Rupee.

2. The contention of the petitioner is that a person who purchases the holding after the sale is not a person whose interest is affected by the sale as the interest contemplated in the Section is an interest existing at the date of the sale. We are unable to accept this view of the matter. There is nothing in the Section to indicate that the interest of the person who makes the application for setting aside the sale must be in existence at the date of the sale. If the interpretation, sought to be put upon the word 'interest' in this Section by the petitioner be accepted, the position would be that if the judgment-debtor dies a day after the sale, his heirs or legal representatives would have no right to get the sale set aside on deposit of the decretal amount. The sole criterion for determining whether a person's interest is affected by the sale is to find out whether his interest will be affected if the sale be ultimately confirmed. Under Section 159, Ben. Ten. Act, a purchaser at a rent sale gets his title from the date of the confirmation of the sale and not from the date of the sale as in a sale under the Code of Civil Procedure. The judgment-debtor, therefore, has a subsisting interest between the date of the sale and the date of the confirmation of the sale. The purchaser from the judgment-debtor after the date of the sale and before the confirmation of the sale, therefore, acquires the subsisting interest of the judgment-debtor. If the sale be not set aside, that is to say, if the sale be confirmed, the interest which the purchaser has got from the judgment-debtor would be affected by the sale in the same way as the interest of the heirs of the judgment-debtor if he dies after the sale would be affected. We are therefore of opinion that the learned Subordinate Judge was right in holding that the purchaser at a private sale after the auction sale has locus stand to get the sale set aside under Section 174, Clause (1), Ben. 'Ten. Act. The rule is accordingly discharged with costs. Hearing fee one gold mohur.


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