1. This Rule is directed against an order of the Subordinate Judge of Chittagong decreeing an appeal preferred by the opposite party from the decision of the Munsiff and setting aside the sale of the disputed property. The facts of the case are that the petitioner who is a landlord obtained a decree in a rent suit against the tenant Nayan Khan. The suit was valued at Rs. 20 and odd annas. It was not disputed that the holding was a non-transferable occupancy holding. The petitioner, attempted to execute the decree. The opposite party made an application for deposit of the decretal amount under Section 170(3) of the Bengal Tenancy Act on the ground that he was a purchaser of the holding from the tenant judgment-debtor. This application was summarily refused by the Munsiff on the ground that he did not believe that the purchase made by him was a bona fide one. The opposite party therefore, preferred an appeal, but before the appeal came on for hearing the holding in dispute was sold in execution of the decree obtained by the petitioner against the tenant. On appeal the learned Subordinate Judge held that the appellant was a purchaser of a portion of the occupancy holding, that his purchase was bona fide and for consideration, and that he was entitled to make the necessary deposit under Section 170, Bengal Tenancy Act. He allowed the appeal and further ordered that as the decretal amount had been deposited the sale should be set aside. I need not decide, in the view I take on other points, if the opposite party is entitled to make the deposit as purchaser of a portion of a non-transferable occupancy holding.
2. This Rule was obtained on the ground, first, that no appeal lay to the Court of Appeal below from the order of the Munsiff, and secondly, that the lower Appellate Court has exercised a jurisdiction not vested in it by law in setting aside the execution-sale in the appeal. With regard to the first ground, it is contended that us the suit was valued, at less than Rs. 50 and tried by a Munsiff, specially empowered under Section 153, Bengal Tenancy Act, no appeal lay either from the decree or from any order passed in execution of that decree. It is also argued that, whether an appeal lay from the decree in the original suit or not, the order which was passed was not an order deciding a question relating to title to land or some interest in land as between parties having conflicting claims thereto within the meaning of Section 153, Bengal Tenancy Act. With regard to the first branch of this argument I may observe that the decree itself and the pleadings are not on the record and so there is no proof whether in the rent suit any such question was not raised which would make the decree appealable under the proviso to Section 153, Bengal Tenancy Act.
3. With reference to the second branch of the contention, I hold that the order appealed from must decide, irrespective of the character of the suit, a question of conflicting title in order to be open to appeal. For the purpose of this case I will assume that the decree was passed in a suit in which such a question was raised as to make it appealable. The question, therefore, remains as to whether any order passed in the execution of such a decree would by virtue of the decree being appealable be also appealable, whether it does or not decide any question of conflicting title. There is no authority directly in point; but it is evident from an examination of a number of cases which have dealt with this point that the law at present must be taken to be that the order passed in execution must itself decide, in order to be appealable, a question relating to title to land or to some interest in land as between parties having conflicting claims thereto. This point was considered in the case of Ganga Charan Bhattacharjee v. Sashibbushan Roy (105) 32 Cal. 572, where it was laid down by Mao-lean, C.J., that in deciding whether an order is appealable under Section 153, Bengal Tenancy Act, the point for consideration is not what the decree in the suit decided but what the order decided. This view was approved by a Full Bench of this Court in the case of Kali Mondal v. Ramsarbaswa Chakrabarty (1905) 32 Cal. 957. The result of this Full Bench decision was the addition to Section 153, Bengal Tenancy Act, of the explanation by the Amending Act of 1907 which virtually nullified the effect of the decision of the Full Bench. The point which was decided in Ganga Charan Bhattacharya v. Sashibhusan Roy (105) 32 Cal. 572, however, remained undisturbed; and it has further been held that the explanation added to Section 153 has not superseded the entire decision of the Full Bench in the case of Kali Mondal v. Ram Sarbaswa Chakrabarty (1905) 32 Cal. 957. See the cases of Benimadhub v. Bisweswar (1912) 17 C.W.N. 84, Nobin Chandra v. Bipin Chandra (1035) 19 C.W.N. 953. Reference may in this connection be made to the case of Prafulla Krishna Deb v. Nasibunnessa Bibi (1917) 24 C.L.J. 331 decided by a Special Bench. There the order was passed by a District Judge and the amount claimed in the suit did not exceed Rs. 100 but the order did not decide any question relating to title to land. In these circumstances, the Special Bench held that the order was not appealable. This decision is attempted to be construed as laying down two conditions of the non-appealability of an order; first, that the suit must be one in which no appeal can lie under Section 153, Bengal Tenancy Act, and, secondly, that the order must decide a question of title. I do not agree that both these conditions must be satisfied. In that particular case both the circumstances existed and both are referred to.
4. It is further maintained by the learned Vakil for the opposite party that where the suit is such in which an appeal would lie under Section 153, Bengal Tenancy Act, any order passed in execution, whether such order decides a question of title or not should be appealable. No authority has been placed before me in support of this very broad proposition. The section is not confined to decrees only but makes an order that has decided a question relating to title to land or some interest in land as between parties having conflicting claims thereto appealable. The words 'has decided a question relating to title, &c;,' qualify both decree and order. I am, therefore, of opinion that an order passed in execution of a decree in which an appeal lies from the decree or not, must be an order deciding a question relating to title or some interest in land as between parties having conflicting claims thereto.
5. I now pass to the next contention of the learned Vakil for the opposite party, namely, that the order under consideration is one which has decided a question relating to title to land. No doubt it does; but it does not decide a question of title to land or some interest in land as between parties having conflicting claims thereto. At the time when the question of the opposite party was raised the petitioner-landlord was not interested in the holding and there was, therefore, no conflicting claim to it between the petitioner and the opposite party on that basis. If this question had been raised after the sale and the opposite party had attempted to make the deposit under Section 174, Bengal Tenancy Act, no doubt, the order might have been taken to have decided a question of title as between parties having conflicting claims thereto. This is settled by authority: see the case of Benimadhub v. Bisweswar (1912) 17 C.W.N. 84 and Sital Ray v. Nandolal (1909) 13 C.W.N. 591. I therefore, hold that on the date when the opposite party applied to make the deposit under Section 170(3), Bengal Tenancy Act, there was no conflict of interest or title to land between him and the decree-holder.
6. It has also been contended by the petitioner that the lower Court was not justified and had no jurisdiction to set aside the sale which had taken place subsequent to the filing of the appeal in that Court. I think that this contention should also prevail. It is argued, on the other hand, that the effect of the order of the lower Court was virtually to have the sale set aside, as it found that the opposite party had a right to make the deposit under Section 170(3), Bengal Tenancy Act and had already made the deposit. That may be so; but the officer who set aside the sale was not the Munsiff who had held it and I do not know whether an application was made to the Munsiff for setting aside the sale in pursuance of the judgment of the lower Appellate Court. On those grounds, in my judgment, this Rule should be made absolute, the order of the lower Appellate Court passed in appeal dated the 5th April 1923, as amended by his order, dated the 16th April, 1923, be set aside and the original order of the Munsiff restored. Each party do bear his own costs of this Rule.