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Jahir Mandal Vs. Rani Radha Rangini Devi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1928Cal859
AppellantJahir Mandal
RespondentRani Radha Rangini Devi and ors.
Cases ReferredMaharaja Bahadur Singh v. Karani Mai
Excerpt:
- .....lay. it was contended on behalf of the opposite party that as the munaiff found that there was fraud an appeal to the subordinate judge was competent, and in support of this contention the opposite party relies upon the full bench case of kali mandal v. ramsarbaswa chakravarti [1905] 32 cal. 957. in that case the question put to the full bench was whether an appeal lay from an order setting aside a sale or declining to set aside a sale in execution of a decree for rent, as there was no appeal from the decree in the suit on account; of the prohibition contained in section 153, ben. ten. act. maclean, c.j., in his judgment in that case in answer to the question put to the full bench relied upon the opinion expressed by himself in the previous case of ganga gharan v. sashi bhusan [1905].....
Judgment:

B.B. Ghose, J.

1. This rule was obtained by the judgment-debtor in a decree for rent which was obtained by the opposite party for les3 than Rs. 50. The holding of the petitioner was sold for Rs. 34 and it was purchased by the decree-holder. The sale took place in the year 1916. The application for setting aside the sale was made in the year 1926. It was alleged that the petitioner was kept from the knowledge of his right to make the application for setting aside the sale by the fraud of the opposite party and, therefore, the petitioner was entitled to extension of time for making the application under Section 18, Lim. Act. It was alleged that the sale was vitiated on the ground of non-service of process and fraud and inadequacy of price. It was opposed by some only of the opposite parties. The points argued before the Munsiff were (1) whether the application was barred by limitation, (2) whether the sale was liable to be set aside on account of supression of process of attachment and sale proclamation or for irregularities in publishing and conducting the same or on account of fraud, (3) whether the sale was bad for inadequacy of price. The learned Munsiff held that the petitioner was entitled to the benefit of Section 18, Lim. Act and, therefore, the application was not barred by limitation. The learned Munsiff next dealt with the question as to the irregularities and his findings are expressed in these words:

To my mind notices under Order 21, Rule 66, Civil P.C., were all suppressed and not served. The absence of such notices is a material irregularity vitiating the sale. The proclamation of sale is blank. It does not contain the name of the place, the date of sale and the amount of the decree nor the value of the land to be sold. Everything was done in a hurry. The provisions of Order 21, Rule 66 were not at all complied with. These irregularities in publishing that sale are material irregularities vitiating the sale. To my mind the proclamation of sale was also suppressed with fraudulent motive.

2. He then found that Darbesh Sarkar the Tahsildar of the landlord was after all these lands and seemed to have been a party to the fraud with a sinister motive to get hold of the land; and he found afterwards that it was this Darbesh who took settlement from the landlord of the lands in question after the auction sale and he himself personally was eager to get hold of the lands. Upon these findings the sale was set aside. On appeal by the decree-holder the Subordinate Judge held that the application was barred by limitation and in that view the Subordinate Judge did not deal with the other questions relating to the irregularities mentioned by the Munsiff in his judgment. A second appeal was preferred against the decision of the Subordinate Judge by the petitioner which was dismissed on the preliminary objection taken by the opposite party. In the alternative the petitioner obtained this Rule,

3. The only ground that has been urged before us is that there was no appeal from the decision of the Munsiff to the Subordinate Judge having regard to the provisions of Section 153, Ben. Ten. Act. The Munsiff we are told was empowered to deal with these matters finally under the provisions of Section 153, Ben. Ten. Act, and, therefore, no appeal lay. It was contended on behalf of the opposite party that as the Munaiff found that there was fraud an appeal to the Subordinate Judge was competent, and in support of this contention the opposite party relies upon the Full Bench case of Kali Mandal v. Ramsarbaswa Chakravarti [1905] 32 Cal. 957. In that case the question put to the Full Bench was whether an appeal lay from an order setting aside a sale or declining to set aside a sale in execution of a decree for rent, as there was no appeal from the decree in the suit on account; of the prohibition contained in Section 153, Ben. Ten. Act. Maclean, C.J., in his judgment in that case in answer to the question put to the Full Bench relied upon the opinion expressed by himself in the previous case of Ganga Gharan v. Sashi Bhusan [1905] 32 Cal. 572. In the earlier case of Ganga Gharan v. Sashi Bhusan [1905] 32 Cal. 572 as well as in the later case the question was whether the sale was vitiated on the ground of irregularity in publishing or conducting the sale. Maclean, C.J., was of opinion that In deciding this the Court has to go into the question of conflicting title. As he put the matter in the case of Ganga Charan v. Sashi Bhusan [1905] 32 Cal. 572:

The opposite party says : This is my land because the sale to me is a good sale. The petitioner says: It is my land because the sale to you is a bad one; and that was the question which was decided by the order which was in appeal to the Additional District Judge.

4. The opinion of the Full Bench that the regularity of proceedings in publishing or conducting a sale was a question of conflicting title was superseded by the legislature. The Explanation added to Section 153 makes it clear that the regularity of the proceedings in publishing or conducting the sale in execution of a decree for arrears of rent is not a question relating to title to land or to some interest in land as between parties having conflicting claims thereto. The learned advocate for the opposite party relies upon the opinion expressed in some cases that the Full Bench decision aforesaid has been affected by this Explanation only partially, so that where the question of fraud is raised the Full Bench decision retains its force. I may, however, point out that no question of fraud was at all discussed in any of the judgments in the Full Bench case. The question related to the regularity of the proceedings in, publishing or conducting the sale. If that is nullified by the Explanation added to Section 153, to my mind the whole effect of the Full Bench case of Kali Mandal v. Ramsarbaswa [1905] 32 Cal. 957, has been nullified by the legislature. I would further venture to state that the regularity of the proceedings in publishing or conducting a sale does not necessarily exclude the question of fraud. The irregularity in the proceedings may be for non-publication of the notices or any material error, which may be due to fraud, negligence or simple inadvertence. How is the Court to differentiate between these? The fact is established that the requisite notices were not served. It is only by mere inference in the majority of cases that the Court can come to any conclusion that service was not made with fraudulent motive or that it was due to sheer negligence on the part of the decree-holder or his men.

5. In this particular case the Munsiff found that the Tehsildar of the landlord did not serve the notices with fraudulent motive for his own interest in order to get the property himself after purchasing it for his master, the landlord. Will there be difference as regards the right of appeal on account of the fraud of a servant of the decree-holder for his own purpose or on account of the fraud of the decree-nolder himself? I think not. It can not reasonably be contended in my judgment that if a third party commits a fraud with regard to the sale of certain properties the effect should be the same as if the fraud was committed by the decree-holder himself. To hold that there should be an appeal if the fraud is brought home to the decree-holder, and if the fraud was due to the act of a third person say of the peon there should be no appeal, seems to me also illogical. As a matter of fact it is often very difficult to discover where proper notices were not served whether it was on account of fraud or negligence. Therefore the real question in my judgment is whether the proceedings in publishing or conducting the sale were regular or not would fall within the Explanation, whether that irregularity was due to fraud or negligence or for any other reason. The Explanation says 'A question as to the regularity etc.,' which in my opinion includes every ground affecting the regularity.

6. It is urged on behalf of the opposite party that there has been a conflict of decisions in this matter and, therefore, the question should be referred to a Full Beach. The only case in which this question of fraud directly arose is the case of Nobin Chandra v. Bepin Chandra Roy [1915] 22 C.L.J. 224. There the learned Judges composing the Bench were divided in opinion and I respectfully disagree with the opinion expressed by Chatterjea, J., where he observed that the effect of the Full Bench case in Kali Mandal v. Rumsarbaswa [1905] 32 Cal. 957, has been only partially nullified be the Explanation attached to Section 153, Ben. Ten. Act. It seems to me that by adding the explanation the legislature only declared what the law was and as I have already stated it entirely nullifies the effect of the Full Bench case. Although there are observations to the same effect in the cases of Beni Madhab Roy v. Bisseswar Bharati [1912] 16 C.L.J. 52 and Arjun Das v. Gunendra Nath Basu [1914] 18 C.W.N. 1266, it should be noted that those were not cases relating to fraud in publishing or conducting a sale. Those cases therefore are no authority for the proposition put forward by Mr. Sen for the opposite party. The previous cases have been discussed in a recent judgment by Mukherji J., in the cases of Maharaja Bahadur Singh v. Karani Mai : AIR1927Cal633 , where the learned Judge expressed a strong dissent from the view that where there is fraud alleged or found in publishing or conducting a sale there is an appeal in such a case as this. I entirely agree with the opinion expressed by that learned Judge. Under the circumstance a reference to the Full Bench is not called for.

7. I therefore hold that in the present case there was no appeal against the order of the Munsiff to the Subordinate Judge and that appeal was heard without jurisdiction. The Rule is made absolute. The judgment and order of the Subordinate Judge are set aside and those of the Munsiff restored with costs in all Courts. The hearing-fee in this Rule is assessed at three gold mohurs.

Bose, J.

8. I agree.


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