1. These were Rules calling upon the opposite party to show cause why the order of the District Judge, reversing the decision of the Munsif setting aside a sale under the Bengal Tenancy Act, should not be set aside on the ground that the appeal was incompetent.
2. Now the reason why the petitioner contends that the appeal is incompetent is that the grounds of the Munsif's decision or one of the grounds of the Munsif's decision was that the judgment-debtor had purchased the property himself benami through the auction-purchaser. But that does not necessarily bring the case within Section 173(3) of the Bengal Tenancy Act. That section says, when the judgment-debtor purchases by himself or through another person a tenure or holding so sold, the Court may, if it thinks fit, on the application of the decree-holder or any other person interested in the sale by order set aside the sale. This is a summary procedure which the Rent Courts are allowed to take, if they see fit, where no other question arises but the question of benami. But where the grounds for setting aside the sale are, as they were in this case, grounds: of irregularity and fraud, grounds falling within the purview of Section 311 of the old Code and now governed by Section 47 of the new Code as well as by Order XXI, Rule 90, there can be no doubt that the Court not only has power, but it has the positive duty, not to adopt the summary procedure laid down in Section 173 but to try the case, as the Munsif appears to have tried this case, under the ordinary provisions of the Code of Civil Procedure. There can be no doubt from the Munsif's judgment that he had no idea of confining his decision to Section 173 of the Bengal Tenancy Act. He does not mention that section, nor does he refer to it; and the mere fact that one of the grounds of irregularity and fraud urged against the sale was that the judgment-debtor had purchased the property benami would not bring the case within Section 1.3. Not only, therefore, was the appeal not incompetent but on the authorities of which we need only refer to the case of Chand Monee Dasya v. Santo Moni Dasya 24 C. 707 at p. 710 : 1 C.W.N. 534 a second appeal would lie. It appears that the petitioners who obtained these Rules did file second appeals in this Court and that those appeals were summarily dismissed by another Bench. We, therefore, cannot give him any assistance in the matter of second appeals. He can, if he is so advised, apply to the Court which summarily dismissed these second appeals for review of that order. But; we cannot in any way interfere with it.
3. The result is that these Rules are discharged and the opposite party who has appeared is entitled to his costs, one gold mohur in each Rule.