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Midnapur Zamindari Co., Ltd. Vs. Priyabala Dasee - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1933Cal782
AppellantMidnapur Zamindari Co., Ltd.
RespondentPriyabala Dasee
Excerpt:
- .....six months of the data of the sale as is required by the provisions of section 174 of the amended bengal tenancy act, the lower appellate court has committed an error of law in holding that the application was not barred by time. the question therefore which we have to decide in this appeal is as to whether the provisions of section 18 apply to applications under section 174 of the amended bengal tenancy act; and it is conceded that, if section 18, lim. act, govern the present case, the application is within time on the findings arrived at by the lower appellate court, that the judgment-debtors came to know of the sale within a few days of the date of the application to set aside the sale.4. in order to decide this question, two acts have to be considered. first of all, the bengal.....
Judgment:

Mitter, J.

1. This is an appeal by the Midnapur Zamindari Co., Ltd., who are the decree-holders is a certain suit for rent. The appeal arises out of proceedings taken under Section 174, Ben. Ten. Act, to sat aside the sale held in execution of a rent decree obtained by the Midnapur Zamindari Co., Ltd. The respondents, who are judgment-debtors 1 to 3, challenged the sale on three grounds: (1) that there was no service of sale proclamation or any process in the execution case, (2) that the judgment-debtors 2 and 3 were not properly represented in the execution case and (3) that there ware great irregularities in the publication and conduct of the sale.

2. The case of the judgment-debtors was that the processes in execution were fraudulently suppressed by the officers of the decree-holders, and that they came to know of the sale some time in Bhadra or Ashwin, which would correspond to September, and the application to set aside the sale-was made on 12th November. The decree-holders contested the application of the judgment-debtors. They travarsed all the allegations about non-service of sale proclamation and denied that there had been irregularities in the publication of the sale proclamation. They also contended that the judgment-debtors have not suffered substantial injury and they further said that the decree in execution of which the property was sold was not a nullity, in so far as the infant judgment-debtors are concerned, it being their case that they were not minors. The Munsif found on the question of fraud against the judgment-debtors and he accordingly dismissed the petitioner's application, being of opinion that the application was barred by limitation. An appeal was taken to the Court of the Subordinate Judge, who has taken a contrary view and has set aside the sale.

3. Against this decision, the present appeal has been brought, and a preliminary objection to the hearing of the appeal has been taken by the respondents on the ground that, under the provisions of Section 174(3), Ban. Ten. Act, as amended by Bengal Act 4 of 1928, no appeal is permissible and that the law allows only one appeal. The question arose before us on a previous occasion, but there has been no final determination of this question. On the present occasion also, as we are against the appellants on the merits of the appeal, it is not necessary to deal with the preliminary objection. The main contention which has been raised on behalf of the decree-holders by their learned Counsel, Mr. U.N. Sen Gupta, is that the provisions of Section 18, Lim. Act, do not apply to the present case and that, as admittedly the application was not made within six months of the data of the sale as is required by the provisions of Section 174 of the amended Bengal Tenancy Act, the lower appellate Court has committed an error of law in holding that the application was not barred by time. The question therefore which we have to decide in this appeal is as to whether the provisions of Section 18 apply to applications under Section 174 of the amended Bengal Tenancy Act; and it is conceded that, if Section 18, Lim. Act, govern the present case, the application is within time on the findings arrived at by the lower appellate Court, that the judgment-debtors came to know of the sale within a few days of the date of the application to set aside the sale.

4. In order to decide this question, two Acts have to be considered. First of all, the Bengal Tenancy Act provides, under Section 174, a special period of limitation to set aside a sale held in execution of a rent decree and the period fixed by the amendment of Bengal Act 4 of 1923 is six months from the date of the sale: Section 174(3). It is contended that, as, under Section 185, Ben. Ten. Act, the provisions of Sub-section (2), Section 29, Lim. Act, have been held not to apply to all suits, appeals and applications, specifically mentioned in the schedules to this Act, it must be taken that the intention of the legislature was to ignore the existence of Sub-section (2), Section 29, Lim. Act, as it existed in 1908, even with regard to cases which are outside the purview of Section 185. In other words, it is said that Section 185 is to control proceedings which are not specified in Sch. 3 annexed to the Bengal Tenancy Act. The proceedings, which are not specified in Sch. 3, Ben. Ten. Act, may really be divided into two classes: (1) those, of which limitation period is provided for in sections of the Bengal Tenancy Act, for instance, Sections 104(H), 105, 167 and 174, with which we are at present concerned, (2) those, of which the limitation periods are not at all provided for in the Act, as for instance, cases of ejectment of under raiyats, cases of execution of decree for money exceeding Rs. 500. To the former class of cases, which come under class (1), as stated above, the provisions of Sections 9 to 18 and Section 22, Lim. Act, in our opinion, apply, if they are not expressly excluded by the provisions of the Bengal Tenancy Act. It becomes necessary to consider the language of Section 29(2), Lim. Act of 1908 as amended by Act 10 of 1922. Clause (2) of that section runs as follows:

Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by Sch. 1, the provisions of S, 3 shall apply, as if such period were prescribed therefor in that schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law- (a) the provisions contained in Section 4, Sections 9 to 18, and Section 22 shall apply only in so far as, and to the extent to which they are not expressly excluded by such special or local law.

5. Therefore in all such cases, which are not mentioned in Section 185, viz. the two classes of cases, to which we have just referred, the Bengal Tenancy Act has to be read with reference to the provisions of Section 29(2), Lim. Act of 1908, as amended by the Act of 1922. If that is the correct view, as we hold that it is, then, having regard to the provisions of Sub-clause (a), Clause (2), Section 29, it appears clear that Section 18, Lim. Act, applies, as there is nothing in the Bengal Tenancy Act which expressly excludes the application of the section. We are unable to agree with Mr. San Gupta that, because the legislature has made Section 29(2) inapplicable to the cases mentioned in Section 185, it must also have been intended to exclude the application of Section 29(2), Lim. Act, to cases outside the classes of suits, appeals and applications specified in the schedule annexed to the Act. That would be giving a larger effect to the section than what is suggested by its plain language.

6. We are therefore of opinion that the view taken by the lower appellate Court is right. This appeal is accordingly dismissed with costs. We assess the hearing fee at one gold mohur. It is not necessary to make any order on the application in the alternative.

M.C. Ghose, J.

7. I agree.


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