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Kuloda Prasad Majumdar and anr. Vs. Kumar Prativa Nath Roy and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1935Cal91
AppellantKuloda Prasad Majumdar and anr.
RespondentKumar Prativa Nath Roy and ors.
Cases ReferredMofizuddin v. Mofizuddin
Excerpt:
- .....of a decree against whom the jama in arrears was sold and who applied for setting aside the sale. the decree-holder obtained the decree on 21st dacember 1925. the sale at which the decree-holder himself made the purchase took place on 18th march 1929. the application to set the sale aside was made on 27th march 1929 under order 21, rule 90, civil p.c. on 4th may 1929, the judgment-debtors were ordered under section 174, clause (3), ben. ten. act, to deposit the decretal amount by the 27th of that month. on the date last mentioned, the time for the deposit was extended to 1st june 1929, on which date an application was made by them for further extension of time but was refused. the case was then taken up, but the judgment-debtors did not appear. on that, the application under order.....
Judgment:

Mukerji, AG.C.J. and S.K. Ghose, J.

1. This is an appeal by some judgment-debtors in execution of a decree against whom the jama in arrears was sold and who applied for setting aside the sale. The decree-holder obtained the decree on 21st Dacember 1925. The sale at which the decree-holder himself made the purchase took place on 18th March 1929. The application to set the sale aside was made on 27th March 1929 under Order 21, Rule 90, Civil P.C. On 4th May 1929, the judgment-debtors were ordered under Section 174, Clause (3), Ben. Ten. Act, to deposit the decretal amount by the 27th of that month. On the date last mentioned, the time for the deposit was extended to 1st June 1929, on which date an application was made by them for further extension of time but was refused. The case was then taken up, but the judgment-debtors did not appear. On that, the application under Order 21, Rule 90 was dismissed for default. There was then an application filed by them for review which was ultimately dismissed. They then preferred an appeal from the order dismissing their application under Order 21, Rule 90 of the Code. At the hearing of the appeal it was found that the deposit contemplated by Clause (5), Section 174, Ben. Ten. Act, had not been made. The decree-holder took a preliminary objection as to the maintainability of the appeal on the ground that the required deposit had not been made. The objection prevailed and the appeal was dismissed. From this order the present appeal has been preferred.

2. It is not disputed that the appeal does not lie. What is contended is that on revision it should be held that the order of the Court of first instance as well as of the Court of appeal below were orders made without jurisdiction. The first ground taken is that the decree was not a rent-decree, nor the sale a rent-sale, and that consequently Chap. XIV, Ben. Ten. Act, was inapplicable. On this contention, one argument advanced is that Clause (5), Section 174 of that Act having no application the appeal could not be dismissed for omission to make the deposit required by that clause; and another contention urged is that no deposit could be called for under Clause (3) of that section nor could any order of dismissal be made of the application under Order 21, Rule 90 of the Code for failure to make the deposit. The Subordinate Judge has given some reasons for overruling the aforesaid contention. But we are not inclined to examine the correctness or otherwise of his reasons, because we find that the present contention of the appellants is contrary to what they stated in some of their own petitions in the Court of first instance.

3. It is not disputed that if Chap. XIV, Ben. Ten. Act, applied, Clause (5), Section 174 of the Act would apply to the appeal in the Court below. That appeal was filed after the amendments of the Bengal Tenancy Act of 1928 came into force and the provision of Clause (5), Section 174 of the Act began to operate as soon as the amendments came into force, there being nothing in the language of the provision indicating the contrary. On the question whether the clause can operate retrospectively, it has been held that in cases of applications under Order 21, Rule 90 lodged before the amendments came into force, the provision had no application, because there was nothing to indicate that it was made retrospective either expressly or by necessary intendment and that as the matter involved is one affecting the right of appeal which is a substantive right, according to the ordinary canons of construction no retrospective operation can be given to it: Nagendra Nath Bose v. Manmohan Singha 1931 Cal 100 and Asikannissa v. Dwijendra Krishna 1931 Cal 92. These decisions however do not help the appellants in the present case, because their application to set aside the sale under Order 21, Rule 90 itself was filed, and even the sale itself had taken place, after the amendments came into operation. The appellants have urged that inasmuch as the execution proceedings had been started prior to when the amendment came into force, the amendments should not be operative. With this contention we cannot agree, because the right that is affected by the amendments accrued only on the sale and not before.

4. We have been asked to hold that the order of the Court of first instance calling for the deposit was made without jurisdiction and in this behalf reliance has been placed on the decision of this Court in Mofizuddin v. Mofizuddin 1934 Cal 491. In that case it has been held that such deposit under Clause (3), Section 174, Ben. Ten. Act, can be called for by the Court after and not before the hearing of the application. The learned Judges have in that case pointed out the enormous difficulties that are experienced in construing the clause. We are very doubtful if it was not the intention of the legislature that the word 'allowed' in the clause should be read in the sense of 'entertained,' because we are unable to hold that unless it is so read the difficulties can be solved: the solution suggested in the aforesaid decision, in our opinion, is not a satisfactory solution of the difficulties. On the whole, we are not prepared to hold that a case for revision has been made out. The appeal is dismissed, so also the application. There will be no order for costs.


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