1. This Rule has been issued to show cause why the order of the District Judge of Faridpur, dated the 10th May, 1927, should not be set aside or such other order passed as to this Court may seem fit and proper. The order referred to in the Rule. is one by which the District Judge dismissed an appeal in his Court and affirmed the order of the Sadar Munsif of Faridpur, dated the 8th January, 1927, setting aside an auction sale. The Rule has been obtained by the decree holders-auction-purchasers.
2. A preliminary objection has been taken on behalf of the opposite party, namely, the judgment-debtors, which is to the effect that in point of fact no appeal lay to the learned District Judge from the order of the Munsif inasmuch as the Munsif was vested with final powers under Section 153 of the Bengal Tenancy Act and there was no question which could bring the case within the exception mentioned in that section. In support of this preliminary objection reference has been made to the case of Maharaj Bahadur Singh v. Karani Mai : AIR1927Cal633 . The decision in this case is an authority for the proposition that fraud in publishing or conducting a sale is not meant to be kept separate from irregularities in the publication or conduct thereof for the purpose of the Explanation to Section 153 of the Bengal Tenancy Act and that where an application is made under Order XXI, Rule 90 of the Code of Civil Procedure for setting aside a sale on the ground of material irregularity or fraud the mere fact that fraud is alleged would not give rise to a question of title within the meaning of the Exception so as to take the case out of the substantive provision of Section 153 of the Bengal Tenancy Act and thus give a right of appeal which is forbidden by that section. In opposition to that argument reference has been made to the Full Bench decision of this Court in the case of Kali Mandal v. Ramsarbaswar Chakravarti 32 C. 957 : 1 C.L.J. 476 : 6 C.W.N. 721 and to a very recent decision a note of which is to be found in 31 C.W.N. (Notes portion) page 107 the case being that of Prosad Kumar Dutt v. Surendra Nath Mitra 31 C.W.N. cvii (notes). Having read this last mentioned decision and also the cases referred to and relied upon therein I do not find any reason to dissent from the view which I expressed in the case of Maharaj Bahadur Singh v. Karani Mai : AIR1927Cal633 . I am, therefore, of opinion that the appeal which was filed before the District Judge from the decision of the learned Munsif was incompetent. The effect of holding that the preliminary objection is well-founded is to hold that the order against which this Rule is directed was passed without jurisdiction and one result of this a very curious results--is that that order will necessarily have to be set aside--a thing which the petitioner also asks for. But the justice of the case demands that the order of the Munsif which would be revived by reason of that of the learned District Judge being set aside should also be considered in this Rule because the order of the District Judge merely affirms the order of the learned Munsif. On perusing the order of the learned Munsif I find that it is not passed upon any sifficient or proper findings. The learned Munsif has set aside the sale holding that the petitioner came to know of the sale in the month of Falgoon last when he was resisted in his attempt to plough the land by the decree holder No. 1's son and he has also found that the processes were concealed. It is needless to say that these two findings even if they are accepted as entirely correct would not be sufficient for an order for setting aside the sale under Order XXI, Rule 90 of the Code. But then there is a further unsatisfactory feature in these proceedings, namely, that this order was passed on the basis of the uncross-examined testimony of the judgment-debtor himself, the petitioner in the present Rule not having appeared on the day when the case was taken up and his application for summoning his witnesses having been refused by the learned Munsif. It may be that there were some laches on the part of the petitioner in summoning his witnesses, but having taken into consideration the various orders that were passed from time to time in connection with the case I am not at all sure that the learned Munsif exercised a proper discretion in refusing the petitioner's application on the 8th January, 1927, and then proceeding with the case ex parte. On the whole in view of the circumstances of the case I think it would be more satisfactory to have the proceedings re-tried in the presence of both the parties, if possible, giving the petitioner an opportunity to adduce such evidence as ha may desire. I am accordingly of opinion that the Rule should be made absolute, Having regard, however, to the fact that the petitioner adopted a wrong course in filing an appeal against the order passed by the learned Munsif although no appeal lay from his decision and also in view of the fact that for what has happened the petitioner has got to blame himself, the order that I shall make would be conditional on the petitioner paying the costs to the opposite party.
3. I accordingly direct that in the event of the petitioner paying to the opposite party within a month of the arrival of the records in the Court of the learned Munsif the decretal costs of this Rule hearing-fee therein being assessed at Rs. 16 together with Rs. 8 as Pleader's fee for the proceedings in the Court of the Munsif the Rule will be made absolute, the orders passed by the learned District Judge and by the learned Munsif will be set aside and the proceedings under Order XXI, Rule 90 of the Code will be retried. If the petitioner fails to make the said payment within the time aforesaid the Rule will stand discharged with costs:--one gold mohur.