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Abdul Rahman Sarkar Vs. Promode Behary Dutta and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in28Ind.Cas.182
AppellantAbdul Rahman Sarkar
RespondentPromode Behary Dutta and ors.
Cases ReferredTarak Das Pal v. Harish Chandra Banerjee
Excerpt:
civil procedure code (act v of 1908), order xxi, rule 89 - occupancy holding not transferable without consent of landlord, purchaser of, right of, to apply under order xxi, rule 89--landlord, right of, when himself purchaser at rent-decree--eastern bengal and assam tenancy act (i of 1908), section 110(4), applicability of. - .....arise out of an application under order xxi, rule 89 of the civil procedure code, to set aside the sale of a holding in execution of a decree for rent.2. no appeal lies in this case, and we have, therefore, to consider the. question raised in the case in the rule.3. the question for decision is, whether the petitioner had a locus standi to make the application under order xxi, rule 89 of the civil procedure code. the opposite parties are the landlords of the holding, which was sold in execution of a decree for arrears of rent due thereon against the tenant and purchased by the landlords themselves. the petitioner purchased the holding at a sale held in execution of a mortgage-decree against the tenant, prior to the sale for arrears of rent, and was in possession thereof. he applied to.....
Judgment:

1. This appeal and the connected Rule No. 280 of 1914 (issued upon an application under Section 115 of the Civil Procedure Code) arise out of an application under Order XXI, Rule 89 of the Civil Procedure Code, to set aside the sale of a holding in execution of a decree for rent.

2. No appeal lies in this case, and we have, therefore, to consider the. question raised in the case in the Rule.

3. The question for decision is, whether the petitioner had a locus standi to make the application under Order XXI, Rule 89 of the Civil Procedure Code. The opposite parties are the landlords of the holding, which was sold in execution of a decree for arrears of rent due thereon against the tenant and purchased by the landlords themselves. The petitioner purchased the holding at a sale held in execution of a mortgage-decree against the tenant, prior to the sale for arrears of rent, and was in possession thereof. He applied to have the sale for arrears of rent set aside under Order XXI, Rule 89 of the Code. The holding is an occupancy holding and not transferable without the consent of the landlord. The Courts below held that the petitioner had no locus standi to make the application.

4. Now, under Order XXI, Rule 89, where immoveable property has been sold in execution of a decree, any person either owning such property or holding an interest therein by virtue of a title acquired before such sale may apply to have the sale set aside. The petitioner having purchased the holding at a sale held in execution of a mortgage-decree acquired a title to the property. But he purchased an entire holding: the landlord was, therefore, entitled to eject him if he chose to do so. As against the landlord, he had not acquired any title to the property.

5. It is contended on behalf of the petitioner that he has a title to the property so long as the landlords do not choose to enter on the holding. But it was the landlords themselves who were the purchasers at the sale sought to be set aside, and who would in ordinary course obtain possession of the holding, though as purchasers, and they insist upon their right to refuse to recognise the title of the petitioner under his purchase, and resist the application to have the sale set aside. The petitioner is brought face to face with the landlords, and we do not see how under these circumstances the petitioner can be said to be a person either owning 'the property, or holding an interest therein by virtue of a title acquired' before the rent sale as against the landlords.

6. It will not be profitable to discuss the cases decided before the Full Bench case of Daamoyi v. Ananda Mohan Roy Chowdhuri 27 Ind. Cas. 61 : 18 C.W.N. 971 : 20 C.L.J. 52 : 42 C. 172.

7. There is one case decided subsequent to the Full Bench decision, Rule No. 175 of 1911, decided on the 22nd July 1911 Ahmadullah Chowdhury v. Harkaru Saha 27 Ind. Cas. 176 : 18 C.W.N. CCXXXI which should be noticed. In that case it was held that the purchaser of a holding is entitled to deposit the decreetal amount under Section 170(3) of the Bengal Tenancy Act. In that case the Court in referring to the decision in Tarak Das Pal v. Harish Chandra Banerjee 16 Ind. Cas. 977 : 16 C.L.J. 548 : 17 C.W.N. 163 [where it was held that if the purchaser had been in possession for more than 12 years to the knowledge of the landlord he was held entitled to make the deposit under Section 170(3)] observed that the learned Judges did not hold it material to consider whether the purchaser had acquired by possession for a period longer than 12 years the status of a tenant of a non-transferable holding. It is true the learned Judges did not consider it material whether the purchaser had by such possession for 12 years acquired the status of a tenant, but the decision was based on the ground that the possession of the purchaser claiming to be a tenant for a period longer than 12 years to the knowledge of the landlord conferred on him the position of a person who had an interest in the holding within the meaning of Sub-section 3 of Section 170. In the present case the petitioner's purchase was within 12 years of the suit. Then the learned Judges (in Rule No. 175 of 1911 cited above) referred to the Full Bench decision and observed as follows: One of the questions referred was: Whether a right of occupancy which is not transferable by custom or local usage is a right which can be transferred at all?' And it was answered in the affirmative subject, however, to the qualification that where the transfer is a sale of the whole holding, the landlord, in the absence of his consent, is ordinarily entitled to enter on the holding.' The landlord, therefore, can terminate the purchaser's interest at any time, and his right to do so is independent of an execution sale. We do not think, however, that on that account the interest is...voidable on the sale...the purchaser has an interest...voidable on the sale, and the deposit was quite competent.'

8. The case was one under Section 170, Clause (3), which relates to the deposit of the decretal amount prior to the sale, by a person having an interest which is voidable on the sale.' Order XXI, Rule 85 of the Civil Procedure Code, relates to deposit after sale, by a person either owning' the property or having an interest by virtue of a title acquired before the sale.' However that may be, in the present case the landlords themselves, as stated above, have purchased the holding, and would in ordinary course enter into possession of it (though as purchasers) and they resist the application.

9. Under the circumstances of the present case, we do not think that the application should be' allowed, and the landlords driven to eject the petitioner as a trespasser.

10. The case comes from the District of Rangpur, and is, therefore, governed by the provisions of the Eastern Bengal and Assam Tenancy Act. It is pointed out on behalf of the petitioner that Order XXI, Rule 89 of the Civil Procedure Code (corresponding to Section 310A of the old Code), though made inapplicable to a holding attached in execution of a rent decree under the Bengal Tenancy Act is, not so made inapplicable under the Eastern Bengal Tenancy Act (see Section 170), and the fourth sub-section of Section 170 of the latter Act lays down that the withdrawal of the amount deposited under Section 310A of the Code of Civil Procedure by the decree-holder landlord shall not operate as an admission of the transferability of the tenure or holding sold in execution of the decree, and it is contended that these provisions show that a person in the position of the petitioner may apply under Order XXI, Rule 89, of the Civil Procedure Code when a holding is sold in execution of a decree for arrears of rent under the Eastern Bengal Tenancy Act. But all that Sub-section 4 says is that the withdrawal of the deposit by the landlord would not operate as an admission of the transferability of the holding. Notwithstanding the withdrawal it is open to the landlord to contest the validity of the transfer, if he chooses to do so. The said sub-section does not debar the landlord, when he has himself purchased the holding at a sale held in execution of a decree for arrears of rent due thereon, to challenge the right of the purchaser (who has not been recognised by him) to make the deposit, on the ground that as against him such purchaser has acquired no title and, therefore, cannot come under Order XXI, Rule 89.

11. We are accordingly of opinion that the petitioner in the present case has no locus standi to apply under Order XXI, Rule 89 of the Civil Procedure Code.

12. The appeal must be dismissed, and the rule also will be discharged with costs, 1 gold mohur.


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