1. This appeal arises out of a certain proceeding in execution. A certain property putni Lat Jogeshwardihi has been sold in execution of a decree for rent. One of the judgment-debtors objected to the sale on the ground that the property had been bought at the sale in the benami of another judgment-debtor. The Trial Court held that the purchase of the property was made by Surendra Nath Chaudhury'in the benami of his brother-in-law Jotindra Prosad Ray Chaudhury who was one of the judgment-debtors and, therefore, under the provisions of Section 173, Bengal Tenancy Act, set aside the sale.
2. The auction-purchaser has appealed to this Court. The objecting judgment-debtor has raised the preliminary objection that no appeal lies against an order passed under Section 173, Bengal Tenancy Act. This contention appears to us to be well-founded. Admittedly the sale took place under the provisions of the Bengal Tenancy Act and the order setting aside the sale was passed under Section 173, Bengal Tenancy Act. No doubt the application to set aside the sale was made under Order XXI, Rule 90 as also under Section 173, Bengal Tenancy Act. Some of the objections which were raised at the time of the hearing of the appeal came under the provisions of Order XXI, Rule 90 but the sale was set aside not for any of the reasons which justify a sale being set aside under Order XXI, Rule 90, but because it came within the mischief of Section 173, Bengal Tenancy Act. Against such an order no appeal lies. This question was considered in the case of Harabandhu Adhikari v. Harish Chandra Dey 3 C.W.N. 184 and this Court held in that case that no appeal lay at the instance of the auction-purchaser against an order setting aside a sale under Section 173, Bengal Tenancy Act. The same question was also considered in the case of Jadab Chandra Mukherjee v. Joy Gopal Bhattacharya 20 Ind. Cas. 191 : 19 C.L.J. 81 and the learned Judges after reviewing all the cases on the subject came to be of the same opinion. No appeal, therefore, lies in this case.
3. The learned Vakil who has appeared for the appellant has next contended that even though no appeal lies against the order setting aside the sale, an appeal does lie against the subsequent order by which the Court ordered that Rs. 5,040 which had been deposited in Court in the name of Surendra Nath Chaudhury was available to the decree-holder. This question is obviously one which cannot be decided in then absence of the decree-holder. The decree-holder, is not present and the record shows that no notice was properly served on' him. The order-sheet shows as follows: On the 22nd May 1923;. ' Notices of appeal and of application have been served by the peon on enquiry in the absence of an identifier lay before Registrar for orders ' and the Registrar passed the following order ' Let service be accepted at the appellant's risk.' This expression apparently means that the appellant was willing to take the risk of the service not being considered satisfactory at the time of the hearing of the appeal and did not pray for any fresh service on the decree-holder. The service is clearly not satisfactory. There was no identifier and the peon's affidavit shows that he made the service on enquiry. There was no one to point out to him the decree-holder. In the absence of the decree- holder, we cannot go into the question, as to whether this order was or was not rightly made. It is, therefore, not necessary to consider whether as against this order an appeal lies or whether we should or could deal with the matter under Section 115, C.P.C.
4. The result is that this appeal fails and is dismissed with costs to the respondents Nos. 4 and 5. We assess the hearing-fee at three gold mohurs.
5. I agree.