1. This appeal arises out of an order of the Subordinate Judge of 24-Parganas refusing to set aside a sale held under the following circumstances: in execution of a rent decree brought by Jagal Chandra Mondal and others in respect of a holding of 500 bighas of land the rent of which was Rs. 1,000 the tenure Was put to sale and purchased by one Aghore Nath Palta on the 16th June, 1920. The present appellant Brojendra Nath Mukerjee held 50 bighas out of the 500 bighas under the judgment debtors. After the sale was held on the 29th March, 1921 the present appellant Brojendra Nath Mukerjee made an application in M. A. No. 29 of 1921 before the Subordinate Judge asking to have the sale set aside on the ground of irregularity and fraud and further alleging that the auction-purchasers Aghore Nath Palta is the son of judgment-debtor No. 2 and is really no more than a benamidar. He also stated that the value of the property was Rs. 10,000 and that the tenure was sold at an inadequate price. This application was under Order 21, Rule 90. The learned Subordinate Judge found that the application was barred by limitation and that there was no material irregularity but happens to have come to the conclusion that as a matter of fact the auction-purchaser was a benamidar of judgment-debtor No. 2. On the case coming up on appeal before us the learned Vakil for the appellant has not attempted to have the order of the learned Subordinate Judge set aside owing to irregularities within the meaning of Order 21, Rule 90 but has requested us to treat this appeal as an application under Section 115, Civil Procedure Code and asks us to set aside the sale in virtue of Section 173 (3), Bengal Tenancy Act. His case is that the sale is really a collusive one between the landlord and the tenant and he has been seriously prejudiced as being a sub-tenant of a part of the holding and that the Court should have exercised its discretion under Section 173 (3) and set aside the sale as being a benami one. On behalf of the respondent it is contended first that the present appellant has no locus standi under Section 173 at all. He was not the decree-holder nor is he a person interested in the sale. Secondly that the Subordinate Judge himself bad the entire discretion as to whether he would avail himself of the provisions of Section 173 (3) or not. The sale under that Section is not necessarily void but is only voidable and it is in the discretion of the Court to determine whether the sale should stand or not. In this connection reference has been made to the case of Gopal Chandra Mitra v. Ramlal Goshain (1894)4) 21 Cal. 554. In the third place it is argued that as a matter of fact if Aghore is really a benamidar the present appellant's interest is by no means affected by the sale as a benamidar would not be able to avoid any encumbrance and that there is no ground for treating this appeal as an application under Section 115, Civil Procedure Code. In our opinion, in view of the wording of Section 173 (3) it is the Subordinate Judge alone who will decide whether the sale is voidable under Section 173 (3) or not and in his discretion he decided not to do so. Nor can I see that in this matter the appellant has been seriously prejudiced for if the sale is not set aside it will only be put up to sale again and some one who is not a benamidar will have the opportunity to buy it and then the appellant's encumbrance might be cancelled without further difficulty. In this view it is not necessary to come to any conclusion on the other points urged and we hold that this Court would not be justified in treating this appeal as an application under Section 115 and to annul the sale under Section 173 (3). The main appeal against the Order under Order 21, Rule 90 is, therefore, dismissed with costs. We assess the hearing fee at two gold mohurs.
2. I agree.