1. We are invited in this Rule to discharge an order of the Court of first instance by which a sale in execution of a decree for arrears of rent has been set aside under Section 310A of the Code of 1882. The auction-purchaser who is the petitioner before this Court alleges that he was not allowed to appear in the Court below and to contest the validity of the application. It is obvious that the sale ought not to have been set aside behind the back of the auction-purchaser, for it is a fundamental principle that no person can be deprived of his rights pecuniary or personal till he had been afforded an opportunity to be heard in defence. That this principle is applicable to cases of auction purchasers is clear from the decisions in Bungshidhar Halder v. Kedar Nath Mondal 1 C.W.N. 114 and Nitya Nand Patra v. Hira Lal Karmokar 5 C.W.N. 63. The case of Bhairab Pal v. Premchand Ghose 1 C.W.N. clxi. in which the contrary view was apparently adopted, must be taken to have been decided on its own special circumstances. In that case as appears from an examination of the judgment, the judgment-debtors who made the deposit under Section 310A were not called upon to pay the costs for the issue of notice to the auction-purchaser. The matter was subsequently taken up without their knowledge and their application was dismissed because they had not paid the costs of the notice. It was conceded that the judgment-debtors were entitled to make the deposit, that they had deposited the correct amount and that no prejudice had resulted to the auction-purchaser from the omission to give him notice. Under these, circumstances it, was held that the sale ought to be set aside though notices had not been formally served upon the auction-purchaser, The case does not lay down any inflexible rule of general application that an execution sale can be set aside without opportunity afforded to the auction-purchaser to contest the application. In the case before us there were substantial questions, in controversy between the parties. It is urged for instance that the application under Section 310A was made after the period of limitation prescribed therefore and further that the section itself has no application to a sale under the Bengal Tenancy Act as recently amended. These are obviously matters which require consideration.
2. The result, therefore, is that this Rule must be made absolute and the order of the Court of first instance set aside. The case will be remanded to the Munsif in order that he may deal with the application to set aside the sale in the presence of the auction-purchaser.
3. Costs of this Rule will abide the result.
4. We assess the hearing fee at one gold mohur.