Skip to content


NobIn Chandra Chowdhury and ors. Vs. BepIn Chandra Roy Chowdhury - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in29Ind.Cas.308
AppellantNobIn Chandra Chowdhury and ors.
RespondentBepIn Chandra Roy Chowdhury
Cases ReferredBeni Madhab v. Biseswar
Excerpt:
bengal tenancy act (viii of 1885 amended by act i of 1908), section 153, proviso and explanation, scope of - sale--irregularity--question relating to title or some interest in land--civil procedure code (act v of 1908), order xxi, rule 90, order under, whether appealable--irregularity and fraud in publishing or conducting a sale. - .....decree and order, having been empowered to exercise final jurisdiction under section 153 of the bengal tenancy act.2. the determination of the question depends upon whether the order of the munsif has decided a question relating to title to land or to some interest in land as between parties having conflicting claims thereto, within the meaning of section 153 of the act.3. now, the full bench in the case of kali mandal v. ramsarbaswar chakrabarti 32 c. 957 : 1 c.l.j. 476;9 c.w.n. 721 held that an order setting aside or declining to set aside a sale in execution of a decree for rent (where the decree-holder is the purchaser) is an order deciding a question relating to title to land as between parties having conflicting claims thereto, and falls within the proviso to section 153 of the.....
Judgment:

N. Chatterjea, J.

1. The question raised in this Rule is, whether an appeal lay against an order of the Munsif refusing to set aside a sale held in execution of a decree passed in a suit for recovery of rent, in which the amount claimed did not exceed fifty-rupees, the Judicial Officer, who passed the decree and order, having been empowered to exercise final jurisdiction under Section 153 of the Bengal Tenancy Act.

2. The determination of the question depends upon whether the order of the Munsif has decided a question relating to title to land or to some interest in land as between parties having conflicting claims thereto, within the meaning of Section 153 of the Act.

3. Now, the Full Bench in the case of Kali Mandal v. Ramsarbaswar Chakrabarti 32 C. 957 : 1 C.L.J. 476;9 C.W.N. 721 held that an order setting aside or declining to set aside a sale in execution of a decree for rent (where the decree-holder is the purchaser) is an order deciding a question relating to title to land as between parties having conflicting claims thereto, and falls within the proviso to Section 153 of the Bengal Tenancy Act, and is, therefore, appealable, though there could be no appeal from the decree in the suit on account of the prohibition contained in the section.

4. The Explanation which has been added to Section 153 of the Bengal Tenancy Act, by the Amending Act I of 1908 (Eastern Bengal and Assam Tenancy Act) lays down that a question as to the regularity of the proceedings in publishing or conducting a sale in execution of a decree for arrears of rent is not a question relating to title to land or to some interest in land as between the parties having conflicting claims thereto.' The learned District Judge held that the real question in this case was whether there was any material irregularity in publishing the sale, and that such a question according, to the explanation to Section 153 is riot a question relating to title to land or to some interests in land as between parties having conflicting claims thereto.' He accordingly held-that no appeal lay to him and rejected the appeal.

5. The allegations, however, made in the application to set aside the sale are to the effect that no processes of attachment or proclamation were served upon the properties, and that the decree-holder, fraudulently and in collusion with the peon, got all the said processes suppressed and false returns to be submitted and thus brought about the sale. The sale, therefore, was sought to be set aside not merely on the ground of material irregularity as contended on behalf of the opposite party, but also on the ground of fraud in publishing the sale, if not on the latter ground alone.

6. The application, it appears, was made more than 30 days after the sale, and the Munsif refused to set aside the sale on the ground that there was no such fraudulent concealment of the execution proceedings on the part of the decree-holder as to bring the case within Section 18 of the Limitation Act. He did not decide any question as 'to the regularity of the proceedings in publishing or conducting the sale.' It is to be observed that the question whether, or not, a case comes under the proviso to Section 153, is to be determined not with reference to the question which may be raised, but with reference to the question decided by the order.

7. The Explanation, therefore, to Section 153 of the Bengal Tenancy Act has no application to the present case, and an appeal lay against the order of the Munsif under the Full Bench decision referred to above. But even if it be held that the Munsif's order by implication decided a question as to fraud in publishing the sale, we have to see whether a question as to fraud in publishing a sale is 'a question as to the regularity of the proceedings in publishing or conducting a sale' within the meaning of the explanation to Section 153 of the Bengal Tenancy Act, and whether the effect of the Full Bench decision has been nullified by the said explanation as contended ou behalf of the opposite party.

8. Now a sale may be set aside under Order XXI, Rule 90, of the present Code of Civil Procedure, on the ground of material irregularity or on the ground of fraud in publishing or conducting a sale. Order XXI, Rule 90, of the present Code of Civil Procedure, therefore, covers a case of material irregularity provided for by Section 311, as well as a case-of fraud coming under Section 244 of the Civil Procedure Code of 1882. The distinction between an regularity in publishing a sale and fraud in publishing a sale was well denned under the old, and is so under the present, Code, and I do not think that the Legislature by using the words a question as to the regularity of the proceedings in publishing or conducting a sale' meant to include not only cases where a question arises as to the irregularity in publication or conduct of the sale, but also cases where there is a question of fraud in publishing or conducting the sale. An irregularity of the proceedings in publishing or conducting a sale is not the same as fraud in publication or conduct of the sale, and I think that if it was the intention of the Legislature, to bar an appeal in cases where a question as to fraud in publishing or conducting a sale is decided, it would have expressed itself clearly by stating that a question as to fraud or as to the regularity of the proceedings in publishing or couducting a sale' is not a question of title relating to title to land, etc. It seems to me that the Explanation applies only to cases where there is a question as to irregularity in publishing or conducting a sale, and that the effect of the Full Bench decision has been restricted to that extent only.

9. I am fortified in the view I take by the case of Arjun Das v. Gunendra Nath Basu Mallik 27 Ind. Cas. 294 : 18 C.W.N. 1266 : 20 C.L.J.341. In that case proceedings to execute a decree for rent having been started more than a year after the judgment-debtor's death, writ of attachment and proclamation of sale were issued in his name and returns were filed that processes had been duly served, and the decree-holder himself purchased the holding at the sale which followed. In an application to set aside the sale by a person (who prior to the sale had purchased the holding) more than a month after the sale, it was held that the application came within Section 47 of the Civil Procedure Code, and was not time-barred, Section 18 of the Limitation Act being applicable to the circumstances of the case, and the sale was set aside. The learned Judges (Mookerjee and Beachcroft, JJ.) observed: 'We may finally add that although the application must be deemed to have been made under Section 47 of the Code of 1908, a second appeal may at first seem barred under Section 153 of bengal Tenancy Act as the claim in the suit for rent was under Rs. 100 Shyama Charan Mitter v. Debendra Nath Mukerjee 27 C. 484 : 4 C.W.N. 269. but a second appeal does apparently lie in this case on the authority of the decision of the Full Bench in Kali Mandal v. Bamsarbaswar Chakravarti 32 C. 957 : 1 C.L.J. 476 : 9 C.W.N. 721 the effect of which, as explained in Beni Madhab v. Biseswar 15 Ind. Cas. 436 : 16 C.L.J. 542 has riot been completely nullified by the explanation added to Section 153.

10. It was contended that we should not refer to the distinction between irregularity and fraud in the Code of Civil Procedure in construing a section of the Bengal Tenancy Act. But the provisions of the Civil Procedure Code, for setting aside a sale either on the ground of fraud or irregularity in publishing or conducting a sale, are applicable to sales held under the Bengal Tenancy Act, and the words regularity of the procedure in publishing or conducting a sale' in the Explanation to Section 153 evidently refer to such a ground for setting aside a sale under the Civil Procedure Code, and I am accordingly justified in referring to the provisions of that Code on the point.

11. I am of opinion that a question as to fraud in publishing or conducting a sale is not covered by the Explanation to Section 153 of the Bengal Tenancy Act, and that the Full Bench decision still applies to a case where such a question is decided. Assuming, therefore, that the Munsif's order decided a question as to fraud in publishing the sale, I think that an appeal lay in this case against the order of the Munsif under the proviso to Section 153 of the Bengal Tenancy Act.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //