1. The defendant had a non-transferable occupancy holding which was put up to sale and purchased by the plaintiff. The plaintiff, however, obtained symbolical possession and not actual possession. He thereupon brought the present suit for declaration of his right by purchase and for possession of the land comprised in the holding, Before entering into his defense, the defendant applied under Order XXI, Rule 90 and Section 47 of the Code for setting aside the sale, That application was dismissed by the Court before the present suit was decided by the Court of first instance. The Court of first instance decreed the suit in favour of the plaintiff, the auction-purchaser.
2. On appeal the learned District Judge held that the sale was not binding as the tenant was not an 'acquiescing party.' He observes: 'The defendant might have avoided the sale for the mere asking of it by a petition.' Evidently ha relied upon one of the principles enunciated in the case of Dayamoyi v. Ananda Mohan Boy Chowdhuri (2), viz., that the transfer of the whole or part of an occupancy holding is operative against the raiyat where it is made involuntarily and the raiyat with knowledge fails or omits to have the sale set aside. The learned Subordinate Judge says that the defendant was not aware of the sale which could have been set aside for the mere asking and as the defendant was in possession, he was entitled to resist the plaintiff's claim, The principle however, upon which he relied, can no longer be maintained, having regard to the view taken by the Special Bench in the case of Chandra Binode Kundu v. Aid Bux 58 Ind. Cas. 353 : 31 C. L. J. 510 : 24 C. W. N. 318 : 48 C. 184 (S. D.), which modifies the decision in Dayamoyi's case 27 Ind. Cas. 61, 20 C. L. J. 52 : 18 C. W. N. 971 : 42 C. 172.
3. The defendant was thus in the same position as any other judgment debtor and could have taken steps to have the sale set aside in the ordinary way, He did apply under Order XXI, Rule 90 and Section 47 of the Code. Now, Order XXI, Rule 0 not only covers a case of material irregularity but also a case of fraud in publishing or conducting the sale. That application was dismissed and, that being so, and the sale not being otherwise invalid; we do not see how it san be held to be invalid in the present suit brought by the plaintiff.
4. The result is, that the decree of the lower Appellate Court is set aside and that of the Court of first instance restored. Each party to bear its own costs throughout.