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Gour Routh Vs. Digamber Giri and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1926Cal790,96Ind.Cas.669
AppellantGour Routh
RespondentDigamber Giri and ors.
Cases Referred and Arjun Das v. Gunendra Nath
Excerpt:
civil procedure, code (ant v of 1908), section 113, order xxi, rule 90 - bengal tenancy act (viii of 1885), section 153--rent-decree--sale, order setting aside--appeal, whether lies--appeal entertained without jurisdiction--revision. - .....inference is that as, proclamation was not made, no bidder was present at the time of auction sale.' no question of fraud was raised, and no issue of fraud was framed. it appears to us that the fact that the irregularity was directly responsible for the substantial injury occasioned to the judgment-debtor and. was the cause of the gross inadequacy of price, does not avail to take the case out of the explanation; it is still a 'question as to the regularity of the proceeding in publishing or conducting a sale' within, the explanation to section 153. we think, therefore, it is not within the exception and that no appeal lay to the lower appellate court. as contended on behalf of the respondents, the order being one under order xxi, rule 90 of the c.p.c. no second, appeal lies to this.....
Judgment:

1. This was an application by a judgment-debtor under Order XXI, Rule 90, C.P.C., to set aside a sale, in execution of a rent-decree on the ground of irregularity. It was resisted by the decree-holder and by the auction-purchaser.

2. The purchase price was Rs. 50, though the value is found to be about Rs. 1,000. The learned Munsif set aside the sale on the ground that the processes were not properly served and the lands had been sold at an extremely inadequate price. On appeal to the District Judge it was held upon the facts that the application was barred by limitation; and upon the merits also the Judge found that there was no fraud or irregularity as regards the proclamation or in publishing and conducting the sale. Consequently the appeal was allowed and the application dismissed.

3. Before us on second appeal it is contended that the decision, of the learned District Judge cannot, stand because no appeal lay from the judgment of the Munsif. It has been shown to. our satisfaction that the learned Munsif was specially empowered by the Local Government under Section 153(b) of the Bengal Tenancy Act and it has not been disputed in argument that an order made in execution proceedings would come within the section as an order passed in a suit: Shyama Char an Mitter v. Debendra Nath Muleerjee 27 C. 484 : 4 C.W.N. 269 : 14 Ind. Dec. (N.S.) 318. In the case of Kali Mandal v. Ramsarbasiva Chakravarti 32 C. 957 : 9 C.W.N. 721 : 1 C.L.J. 476 it was decided by a Full Bench of this Court that an order setting aside or declining to set aside a sale in execution of a decree for rent, the decree holder being the purchaser, was appealable as falling within the proviso to Section 153 of the Bengal Tenancy Act, though the decree itself was not appealable by reason of the prohibition in the section. The ratio decidendi in that case was that such an order in execution was the decision of a question relating to title to land or to some interest therein and, therefore, appealable in terms of the exception to Section 153. Following upon that decision however, came the amendment of that section of the Act by Acts I of 1907 and I of 1908, in Bengal and East Bengal respectively, which added to the section an explanation which is as follows: '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 parties having conflicting claims thereto.' It would seem that the explanation as it now stands goes to restrict the effect of the decision of the, Full Bench above-mentioned see Sheo Parsan Rai v. Bishun Pargash Narain 10 Ind. Cas. 539 : 15 C.W.N. 760, though it does not completely supersede it Beni Madhab Roy v. Bisseswar Bharati 15 Ind. Cas. 436 : 17 C.W.N. 84 : 16 C.L.J. 542 and Arjun Das v. Gunendra Nath 27 lad. Cas. 294 : 18 C.W.N. 1266 : 20 C.L.J. 341. The question, therefore, is what its effect must be taken to be in relation to the circumstances of the present case. Apart from the explanation, the Full Bench ruling would apply; for it can make no difference to the principle of the decision that the auction-purchaser in the present case was a third person and not the decree-holder himself. Following the explanation, if the question in the present case is one merely as to the regularity of the proceeding in publishing or conducting the sale, then that is not a question relating to land or to some interest in land no appeal, therefore would lie. The Munsif finds that there is 'no explanation of the inadequacy of the price fetched at the sale. The only plausible inference is that as, proclamation was not made, no bidder was present at the time of auction sale.' No question of fraud was raised, and no issue of fraud was framed. It appears to us that the fact that the irregularity was directly responsible for the substantial injury occasioned to the judgment-debtor and. was the cause of the gross inadequacy of price, does not avail to take the case out of the explanation; it is still a 'question as to the regularity of the proceeding in publishing or conducting a sale' within, the explanation to Section 153. We think, therefore, it is not within the exception and that no appeal lay to the lower Appellate Court. As contended on behalf of the respondents, the order being one under Order XXI, Rule 90 of the C.P.C. no second, appeal lies to this Court. But the order of the Additional Judge being clearly without jurisdiction, we think we should interfere in exercise of our revisional powers without putting the appellant to the trouble and, expense of making a separate application. We, therefore, dismiss this appeal as incompetent but under Section 115, C.P.C. we set aside the order of the Additional District Judge and restore the order of the Munsif of Dantan setting aside the sale. The appellant will get his costs in this and the lower Appellate Court. We assess the hearing-fee at two gold mohurs.


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