1. This rule arises out of an application made by the mortgagee a tenant judgment-debtor in a rent decree for setting aside a sale held on the 14th March 1916. The facta shortly stated are these : A holding belonging to one Gopinath Midday was mortgaged to the petitioner. During the subsistence of that mortgage, the landlord obtained a decree for rent against Gopinath and in execution of that decree brought the holding to sale, as stated above, on the 14th Match 1916. The petitioner made an application for setting aside the sale under Order 21, Rule 90, Civil P.C., and also under Section 173, Bengal Tenancy Act, on the 5th January 1925, The auction-purchaser opposed the application on the ground that the application was barred by limitation and that there was neither any fraud nor any irregularity in the conduct of the sale. The property was sold for adequate price and the purchase was made by the auction purchaser for his own benefit and not for the benefit of the judgment-debtor as alleged by the petitioner. The learned munsif tried both the applications or rather the applications under both heads together. He found that the application was not barred by limitation, and that so far as the case under Order 21, Rule 90, was concerned, the sale was brought about by fraud and that processes were suppressed and not served and that the property was sold for inadequate price. As regards the application under Section 173, Bengal Tenancy Act, the learned Munsif also found that the decree obtained by the landlord was a sham and collusive transaction that the sale was really sham that the judgment-debtor made the purchase in the name of the auction-purchaser and that the judgment debtor had all along continued in possession. The learned Munsif in the course of his judgment, after stating that the sale was liable to be set aside under Section 173, Bengal Tenancy Act, in making the order, stated that the petition under Order 21, Rule 90 was allowed and the sale self-aside. The auction-purchaser preferred an appeal to the learned District Judge so far as the order of the Munsif setting aside the sale was concerned. It was pointed out on behalf of the petitioner-before the learned District Judge that the order setting aside the sale so far as it was directed under Section 173, Bengal Tenancy Act, was conclusive and no appeal lay. But the learned District Judge overruled that objection and entertained the appeal on the ground that the order was made under Order 21 Rule 90, and disagreeing with the Munsif as to matters which arise under Order 21, Rule 90, set aside the order of the munsif. Against that order the present petition, for revision was filed.
2. The learned vakil who appeared to show cause did not contend that when an order setting aside the sale is made, that order is conclusive and is not open, to appeal. But he contended that the order setting aside the sale really was made under Order 21, Rule 90, and that therefore the learned District Judge had jurisdiction to set aside the sale. It was further contended that so far as the question of limitation was concerned, that was a question common between the two branches of the application of the judgment-debtor. Therefore the application under Section 173, Bengal Tenancy Act, was barred by limitation. Reading the judgment of the learned Munsif as a whole, it appears to me that he came to the findings upon which he held that the sale was liable to be set aside under Section 173, Bengal Tenancy Act. The learned Munsif further found facts upon which he held that the sale was liable to be set aside also under Order 21, Rule 90. There cannot, therefore, ha any doubt that the sale was set aside on both the grounds, although his order setting aside the sale was apparently made under Order 21, Rule 90. That may be accounted for by the fact that the sale need not be set aside twice over. In fact the sale was set aside both under Section 173, Bengal Tenancy Act, and under Order 21, Rule 90. So far as the order under Section 173, Bengal Tenancy Act, is concerned, It is conclusive; and, therefore, the sale had been set aside and was not liable to be reviewed on appeal. Therefore, the learned District Judge, although he disagreed with the Munsif as to the effect of the evidence so far as it related to the proceedings under Order 21, Rule 90, could not give any relief to the appellant before him, because the sale was also set aside by an order which was not open to appeal before him.
3. In the circumstances like the present where an application for setting aside a sale is made on two grounds, first on the ground under the provisions of Section 173, Bengal Tenancy Act, and also under Order 21, Rule 90, and the sale is set aside under the provisions of both, the order setting aside the sale is conclusive and an appeal against the order, so far as it purports to be under Rule 90, Order 21, is infructuous, and, in my opinion an appeal against the order under Rule 90, Order 21, should not be entertained, because the appellate Court could not give any relief to the appellant, although the order under Order 21, Rule 90 might be erroneous. I think, therefore, the order of the Munsif dated the 26th June 1925, setting aside the sale, is conclusive so far as it was made under Section 173, Bengal Tenancy Act, and was not liable to be set aside, because the application of the petitioner. under Order 21, Rule 90 was infructuous. On the whole, therefore, I think the order of the learned Munsif, dated the 26th June 1925 setting aside the sale should be restored.
4. The rule is accordingly made absolute. The petitioner will be entitled to costs of this rule which I assess at 2 gold mohurs. The order of the District Judge awarding costs to the parties is set aside but I make no order as to the costs of the proceedings before the District Judge. Costs will bear interest at the rate of 6 per cent, per annum from the date of the judgment of this Court until realization.