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Abdul Sobhan Vs. Monab Ali and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in14Ind.Cas.453
AppellantAbdul Sobhan
RespondentMonab Ali and ors.
Excerpt:
bengal tenancy act (viii of 1885), section 174(1) - 'judgment-debtor,' meaning of--person against whom no decree made, whether can apply to set aside sale. - .....order had been made, the suit was restored, the fourth defendant did not enter appearance, and a consent decree was made between the plaintiffs, on the one hand, and the first three defendants on the other. under this decree, the plaintiffs became entitled to realise the whole of the sum claimed from the first three defendants, and a declaration was added that the fourth defendant had no interest in the holding. it is obvious that this declaration, made without the knowledge and consent of the fourth defendant, could not in any way affect his position. the plaintiffs then proceeded to execute the consent decree, and at the sale which followed, the petitioner before us purchased the property on the 16th march 1910. six days later, the fourth defendant made an application under section.....
Judgment:

1. We are invited in this Rule to set aside an order under Section 174 of the Bengal Tenancy Act on the ground that it has been made without jurisdiction. The circumstances under which the order has been made are not disputed. On the 15th April 1908, two persons of the name of Jitendra Narain Roy and Jotindra Narain Roy instituted a suit for rent against four persons as defendants. As the defendants did not enter appearance, the plaintiffs obtained an ex parte decree against them. The first three defendants subsequently made an application to set aside the ex parte decree under Section 108 of the Code of Civil Procedure of 1882, and were successful. What the precise effect of the order was, has been the subject of discussion at the bar. It has been suggested, on the one hand, that the effect of the order was to set aside the decree for the benefit of all the defendants; it has been contended, on the other hand, that the effect of the order was merely to set aside the ex parte decree for the benefit only of the three defendants who made the application. In the view we take of the case, it is unnecessary for us to determine which view is well founded. It is sufficient to state that after the order had been made, the suit was restored, the fourth defendant did not enter appearance, and a consent decree was made between the plaintiffs, on the one hand, and the first three defendants on the other. Under this decree, the plaintiffs became entitled to realise the whole of the sum claimed from the first three defendants, and a declaration was added that the fourth defendant had no interest in the holding. It is obvious that this declaration, made without the knowledge and consent of the fourth defendant, could not in any way affect his position. The plaintiffs then proceeded to execute the consent decree, and at the sale which followed, the petitioner before us purchased the property on the 16th March 1910. Six days later, the fourth defendant made an application under Section 174 of the Bengal Tenancy Act to set aside the sale. This application was opposed by the auction-purchaser on the ground that the petitioner had no locus standi to make an application under Section 174 inasmuch as he was not the judgment-debtor within the meaning of the first sub-section of that section. The Court below has overruled this contention and has directed the sale to be set aside under Section 174. In our opinion, the order cannot be supported.

2. Sub-section (1) of Section 174,--we quote only so much of the sub-section as is necessary for our present purpose--provides that where a holding is sold for an arrear of rent due thereon, then at any time within thirty days from the date of sale, the judgment-debtor may apply to have the sale set aside. The term judgment debtor' is not defined in the Bengal Tenancy Act. But, as the sale took place under the provisions of the Code of Civil Procedure, subject to the qualifying rules embodied in the Bengal Tenancy Act (Section 143), reference may legitimately be made to the definition of the term judgment-debtor ' given in the Civil Procedure Code. Clause (10) of Section 2 defines a judgment-debtor as a person against whom a decree has been passed or an order capable of execution has been made. It is obvious, therefore, that in Sub-section (1) of Section 174 of the Bengal Tenancy Act, the expression judgment-debtor' means the person against whom a decree has been made, in execution whereof the sale sought to be set aside has taken place. Now, in the case before us, the consent decree was not made against the fourth defendant. Whether the original ex parte decree is still operative against him, we need not consider, because the plaintiffs have not, up to the present time, sought to execute the ex parte decree. It is clear, therefore, that in relation to the consent decree, which alone has been executed, the fourth defendant is not a judgment-debtor. He is consequently not entitled to make an application to have the sale set aside under Sub-section (1) of Section 174.

3. The result is that this Rule is made absolute and the order of the Court below discharged. We do not decide whether the fourth defendant has any interest in the holding, nor, if he has any, how far the execution sale which his taken place on the basis of the consent decree can affect such interest. We make no order as to coats.


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