1. This appeal arises out of orders passed on an objection under Section 47, Civil P. C. The material facts are these: Defendant 1 took a loan from the Labanga Samaboy Samity on mortgage of his share of a certain holding. Defendants 2 to 7 stood surety for defendant 1 and gave their shares in the same holding as security for the repayment of the loan. On application being made to the Registrar of Co-operative Societies a decree was passed against defendants 1 to 7 on 15th July 1928. In the decree it was found that Rs. 1,312-8-0 was due from defendant 1 to the Labanga Samaboy Samity; and he was directed to pay the amount by 7th January 1929. In the event of his failure to pay the decretal amount within the time fixed, it was ordered that the mortgaged property be put to sale; and that if the sale proceeds were insufficient to satisfy the decretal debt, the Society would be at liberty to apply for a personal decree against defendants 1 to 7. Defendant failed to pay the decretal amount, and in execution Case No. 235 of 1929, the mortgaged properties were put to sale, and purchased by the decree-holder. The sale proceeds were sufficient to satisfy the decretal debt, and a note was made in the order sheet of the execution case that the case was disposed of on full satisfaction. The decree-holder auction-purchaser failed to deposit the landlord's fee as required by Section 26-E, Ben. Ten. Act. But it seems clear from the materials placed before us that the executing Court omitted to specify the time within which such deposit should be made.
2. On 7th November 1933, the decree-holder applied to the Court to have the order of full satisfaction vacated; and this prayer was granted without any notice to the judgment-debtors, and merely on the ground that the auction-purchaser had failed to deposit the landlord's fees. The decree-holder then filed a fresh execution case, being case No. 196 of 1933, in which he prayed for the sale not only of the mortgaged property, but also of the property of defendants 2 to 7 which were given as security for the loan. These properties were put to sale and purchased by the decree-holder for a sum much less than the decretal amount. Defendants 1 and 3 filed an objection under Section 47, Civil P. C., on the grounds (1) that the order of full satisfaction should not have been set aside without notice to them; and (2) that if resale of the property was necessary, it should be held in accordance with the provisions of Section 26-E (3), Bengal Tenancy Act, and any deficit on such resale should be realised from the first auction purchaser; and (3) that the property of defendants 2 to 7 could not be sold until after the mortgaged property had been sold and the sale proceeds found insufficient to satisfy the decretal debt. These objections were overruled by the Subordinate Judge, third Court, 24 Parganas and an appeal from his order was dismissed by the Additional District Judge of that district. Hence this appeal. The lower Courts have held that as the landlord' fee was not deposited after the first, sale, that sale was a nullity and consequently the decree-holder was entitled to apply again for execution of his decree. In our opinion, the first sale cannot be treated as a nullity.
3. If the only defect was the failure to deposit the landlord's fee, and if the decree-holder required that the holding be resold, then such resale should have been held under Section 26-E (3), Ben. Ten Act, and the provisions of that section complied with. Under that section an order for resale can ordinarily be made only after an order for the forfeiture of the purchase money has been made. No such order of forfeiture was made in the present case and no reason was given for the omission. The fact that the decree holder was himself the auction purchaser does not affect his liability to be penalised for failure to deposit the landlord's fee. Section 26-E (3) does not contemplate fresh execution proceedings: it provides for fresh sale in the execution proceedings then pending. We are satisfied from the materials placed before us that the provisions of Section 26-E were not strictly followed, and the Courts below have fallen into error in consequence. Though Section 26-E (1) does not state that the landlord's fees are to be deposited within a time to be fixed by the Court, it is clear from Section 26-E (3) that the Court must specify the time within which the deposit is to be made. Doubtless the Court may extend that time in suitable cases. But until the time specified has expired, there can be no resale under Section 26-E (3). It appears to us that either no time was specified, on the occasion of the first sale, within which the deposit was to be made, or the Court overlooked the fact that such time had been specified. In either case, the Court had no justification to treat the sale as a nullity, and to set aside the order of full satisfaction. Further it is obvious that no order to the detriment of defendant 1's interest should have been made without notice to him.
4. The order vacating the order of disposal on full satisfaction was made without jurisdiction. The appeal must be allowed, and the Mis. case remanded to the original Court for disposal according to law. Execution case No. 196 of 1933 should be treated as a continuation of execution case No. 235 of 1929: and the order passed on the application of the decree-holder to have the order of full satisfaction vacated, and all subsequent orders, set aside. The Court should fix a time within which the deposit required by Section 26-E (1), Ben. Ten. Act, shall be made in connexion with the first sale. If the auction-purchaser fails to make the deposit within the time so specified, the Court may then make an order for the forfeiture of the purchase money, and for resale of the property. The Court may not order resale without first making an order of forfeiture. If it shall be found necessary to order resale, the mortgaged property alone shall first be resold; and only after such resale, and if the sale proceeds be found insufficient to satisfy the decretal debt, shall the property of defendants 2 to 7 be sold. The appeal is allowed with costs throughout; and the case is remanded for disposal in accordance with the directions given above. Hearing fee in this Court three gold mohurs.
5. I agree.