Skip to content


Azam Khan Vs. Umedali Moral and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1925Cal1223,85Ind.Cas.750
AppellantAzam Khan
RespondentUmedali Moral and ors.
Cases ReferredJoytara v. Ram Krishna Seal
Excerpt:
- .....in a sale pursuant to a rent decree. one of the judgment-debtors applied under section 173 (3), bengal tenancy act, to have the sale set aside mainly on the ground that the auction-purchaser was a benamidar for one of the judgment-debtors, viz., chand khan. the first court dismissed the application on several grounds. the learned subordinate judge in appeal held that the auction-purchaser was the benamidar of one of the judgment debtors, chand khan, and in that view set aside the. sale. the auction-purchaser appeals from this decision; and a preliminary objection has been taken to the competency of the appeal on the ground that no second appeal lies in the present case.2. section 173, bengal tenancy act, does not confer any right of appeal, nor does any other provision of the bengal.....
Judgment:

1. This is an appeal by the auction- purchaser in a sale pursuant to a rent decree. One of the judgment-debtors applied under Section 173 (3), Bengal Tenancy Act, to have the sale set aside mainly on the ground that the auction-purchaser was a benamidar for one of the judgment-debtors, viz., Chand Khan. The First Court dismissed the application on several grounds. The learned Subordinate Judge in appeal held that the auction-purchaser was the benamidar of one of the judgment debtors, Chand Khan, and in that view set aside the. sale. The auction-purchaser appeals from this decision; and a preliminary objection has been taken to the competency of the appeal on the ground that no second appeal lies in the present case.

2. Section 173, Bengal Tenancy Act, does not confer any right of appeal, nor does any other provision of the Bengal Tenancy Act or any other Act provide for an appeal against an order passed under Section 173, Bengal Tenancy Act. But it has boon held, that where the question is one which is covered by Section 47, Civil P.C., an appeal is allowable from an order passed under Section 173, Bengal Tenancy Act, though no provision for appeal is made in the Act itself. The right to appeal, therefore, from an order passed under Section 173, Bengal Tenancy Act, depends upon the questions raised and upon the party appealing. Hence the appellant can maintain the present appeal if he can bring his case within Section 47, Civil P.C. The first point, therefore, which must be established is that he is a party to the suit under Section 47. It is argued on his behalf that the case of Prosunno Kumar Sanyal v. Kali Das Sanyal [1892] 19 Cal. 683 is an authority for the proposition that the auction-purchaser is a party within the meaning of Section 47, Civil P.C. We do not think so. Their Lordships of the Judicial Committee laid down in that case that when a question is raised between parties to the suit within the meaning of Section 244 of the Code of 1882, the fact that the auction-purchaser is interested in the decision of that question does not take the case out of the operation of that section. See Joytara v. Ram Krishna Seal [1910] 13 C.L.J. 257. The question as to whether the auction-purchaser has a right of appeal from an order under Section 173, Bengal Tenancy Act, has been considered by this Court in several cases. It is sufficient for our present purpose to refer to the case of Jadab Chandra, Mukherjee v. Joy Gopal Bhattacharya [1913] 19 C.L.J. 81 in which all the previous cases have been summarized and commented upon. The result of all these decisions is that no appeal lies at the instance of the auction-purchaser against an order passed under Section 173, Bengal Tenancy Act, the reason being that he is not one of the parties to the suit within the meaning of Section 47, Civil P.C. There is one case which requires special notice as, on the face of it, it lends support to the contrary view. In Chand Monee Dasya v. Santo Monee Dasya [1897] 24 Cal. 707, there is a general observation that having retard to the decision of the Privy Council in the case of Prosunno Kumar Sanyal v. Kali Das Sanyal [1892] 19 Cal. 683, an application to set aside a sale under Section 173, Bengal Tenancy Act, is an application cognizable under Section 244 of the Code of 1882 and, therefore, a second appeal lies. The learned vakil for the appellant relies upon the dictum and argues that it empowers the auction-purchaser to maintain a second appeal. But that case has been distinguished in the case of Jadab Chandra Mukherjee v. Joy Gopal Bhattacharya [1913] 19 C.L.J. 81, and has been explained in the case of Joytara v. Ram Krishna Seal [1910] 13 C.L.J. 257, referred to above. In that case the judgment-debtors were the applicants. It does not appear from the report of the case as to who was the appellant in the lower appellate Court. The appeal, therefore, was competent by virtue of Section 244, Civil P.C. The point whether the auction purchaser is also entitled to appeal under that section was not raised and decided in that case. On the whole we are of opinion that this appeal is incompetent and does not lie.

3. We are next asked by the learned vakil for the appellant to treat the memorandum of appeal as a petition for revision and to interfere with the decision of the Court below in the exercise of our revisional jurisdiction. We do not think that this is a case in which we should exercise our extraordinary jurisdiction. The objection to the legality of the order of the Court below is that the sale could not be partially set aside. The learned Subordinate Judge has given effect to the compromise between some of the parties and allowed the sale of a portion of the property to stand and set aside the sale to the extent of the interest of the respondent. This may or may not have been the correct procedure to follow: but he has done substantial justice to the parties. Besides we do not see how the appellant has been aggrieved. It has been held that he is a benamidar for Judgment-debtor No. 2. Whether the sale is partially or entirely set aside, it is of no concern to him. We think that there are no merits in appellant's case.

4. The result is that this appeal is dismissed with costs. We assess the hearing-fee at two gold mohurs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //