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Biswambar Nama Vs. Abdul Majid Mea and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in164Ind.Cas.785
AppellantBiswambar Nama
RespondentAbdul Majid Mea and ors.
Excerpt:
bengal tenancy act (viii of 1885), sections 174, 153(b) - rent decree--sale in execution--application to set aside sale opposed denying petitioner had purchased lands sold--rejection of application--held, order was appealable. - .....rightly purchased the judgment lands in auction. he merely prayed for setting aside the auction-sale inasmuch as he was interested in a portion of the lands. the argument is plausible, but it is clear that while the auction-purchaser was claiming to have purchased the lands as having belonged to the judgment-debtors, the petitioner was making a conflicting claim, namely, that the whole of the lands did not belong to the judgment debtors because they had parted with a portion of their right to the petitioner and that conflict in my opinion gave the court of appeal below a right to hear the appeal.4. the other matters argued are matters of fact on which no question can be raised under section 115 of the code of civil procedure.5. the rule is discharged with costs, hearing fee one gold.....
Judgment:

M.C. Ghose, J.

1. In this case the opposite party No. 1 purchased certain lands at an auction sale in execution of a rent decree. After the auction sale the petitioner applied under Section 174 of the Bengal Tenancy Act, to set aside the sale on the ground that he had purchased a portion of the lands. The auction-purchaser opposed the application denying that the petitioner had purchased any of the lands which were sold in execution. The trial Court allowed the petitioner's application. In appeal the learned Subordinate Judge has dismissed the petitioner's application.

2. It is urged in this Court that inasmuch as the rent decree was for a sum less than Rs. 50, there would be no appeal against that decree under Section 153(b) of the Bengal Tenancy Act, inasmuch as the Munsif was vested with the powers under that section and since no appeal is allowed against the decree it follows that no appeal can lie in such a case against an order setting aside a sale or refusing to set aside a sale under Section 174 (5) of the Act, The argument is correct that the provision for an appeal under Section 174 (5) is governed by the condition whether an appeal lies under the provisions of Section 153 of the Act.

3. In this case, however, the learned Subordinate Judge has held that there was a conflict of title as between the petitioner and the auction-purchaser and therefore an appeal lay in this case. It has been strenuously urged that there was no conflict inasmuch as the petitioner merely claimed that he had purchased a portion of the judgment lands. He did not deny that the auction purchaser has rightly purchased the judgment lands in auction. He merely prayed for setting aside the auction-sale inasmuch as he was interested in a portion of the lands. The argument is plausible, but it is clear that while the auction-purchaser was claiming to have purchased the lands as having belonged to the judgment-debtors, the petitioner was making a conflicting claim, namely, that the whole of the lands did not belong to the judgment debtors because they had parted with a portion of their right to the petitioner and that conflict in my opinion gave the Court of Appeal below a right to hear the appeal.

4. The other matters argued are matters of fact on which no question can be raised under Section 115 of the Code of Civil Procedure.

5. The Rule is discharged with costs, hearing fee one gold mohur.


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