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Ranjit Kumar Ghosh Vs. Jogendra Nath Roy - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in15Ind.Cas.561
AppellantRanjit Kumar Ghosh
RespondentJogendra Nath Roy
Cases ReferredRajendro Narain Roy v. Phudy Mondul
Excerpt:
bengal tenancy act (viii of 1885), section 174 - execution of rent-decree--sale of holding--deposit of decretal amount--deposit to be made only by judgment-debtor--deposit by judgment-debtor's alleged attorney--authority of attorney to be proved if challenged. - .....two days later, an application was made for reversal of the sale under section 174 of the bengal tenancy act. that application on the face of it purported to be made on behalf of two of the judgment-debtors by one jogendra nath roy, who alleged that he held a power-of-attorney from them, executed in his favour on the 31st january 1908. the auction-purchaser resisted the application. he impugned the authority of jogendra nath roy to act on behalf of the judgment-debtors in this matter, and suggested that the application was not mads on behalf of the judgment-debtors but for the benefit of a person who claimed to have acquired an interest in the holding by purchase and was, consequently, not competent to apply under section 174. the court did not investigate the question whether.....
Judgment:

1. We are invited in this Rule to set aside an order made under Section 174 of the Bengal Tenancy Act. A holding was sold in execution of a decree for arrears of rent on the 13th September 1911 and purchased for Rs. 2,500 by the present petitioner. Two days later, an application was made for reversal of the sale under Section 174 of the Bengal Tenancy Act. That application on the face of it purported to be made on behalf of two of the judgment-debtors by one Jogendra Nath Roy, who alleged that he held a power-of-attorney from them, executed in his favour on the 31st January 1908. The auction-purchaser resisted the application. He impugned the authority of Jogendra Nath Roy to act on behalf of the judgment-debtors in this matter, and suggested that the application was not mads on behalf of the judgment-debtors but for the benefit of a person who claimed to have acquired an interest in the holding by purchase and was, consequently, not competent to apply under Section 174. The Court did not investigate the question whether Jogendra Nath Roy did really bold a power-of-attorney from two of the judgment-debtors nor did it determine whether under such power-of-attorney, he was competent to act on behalf of the judgment-debtors in this matter. The Court proceeded, on the other hand, upon the assumption that as the application was made in the name of the judgment-debtor by an unregistered transferee of the holding, the application could be entertained and the sale reversed. In support of this view, the Court relied upon the decision of this Court in the case of Behary Lal Mukerjee v. Basarat Mandal 25 C. 289. In our opinion, the case mentioned is clearly distinguishable. It was there ruled that an application under Section 61 of the Bengal Tenancy Act for deposit of rent could be made by any person on behalf of the tenant inasmuch as neither Section 145 nor Section 188 applies to a case of that description nor was any provision made as to how applications other than those in suits were to be made by or on behalf of the parties in a case under Section 61. In the case before us, the application for reversal of the sale is made in the course of execution proceedings, which are but a continuation of the suit. Now, it is clear from Section 143, Sub-section (2), of the Bengal Tenancy Act, that in a case of this description, the Code of Civil Procedure is applicable, and consequently, if a person professes to act on behalf of the parties to the proceeding, his authority to do so, if challenged, must be duly established. If any other view were maintained, the policy of the Legislature by which applications under Section 174 are restricted to judgment-debtors would be completely defeated. It is well known that shortly after the Bengal Tenancy Act came into force, it was ruled in the case of Rajendro Narain Roy v. Phudy Mondul 15 C. 482 that Section 174 must be strictly construed. When Section 310A was inserted in the Civil Procedure Code of 1882, 'it was held applicable to sales in execution of decrees for rent though it had a much wider scope than Section 174 of the Bengal Tenancy Act Janardhan Ganguli v. Kali Kristo Thakur 23 C. 393. The result, therefore, was that provisions of Section 174 were practically superseded. But in 1907, Section 170, Sub-section (1), of the Bengal Tenancy Act, was so amended as to make Section 310A of the Code of 1882 and, therefore, also Rule 89 of Order XXI of the Code of 1908, inapplicable to sales in execution of decrees for rent. Consequently, the view taken in Rajendro Narain Roy v. Phudy Mondul 15 C. 482 that an application under Section 174 can be made by the judgment-debtor alone and by no other person is now good law. The provisions of Section 174 cannot, consequently, be allowed to be frittered away, as it has been, by the Court below in the present case.

2. The result is that this Rule must be made absolute, the order of the Court below set aside, and the case remitted to that Court in order that the question raised may be decided on evidence to be adduced, namely, whether Jogendra Nath Roy was competent to make the application on behalf of the judgment-debtors. The costs of this Rule will abide the result. We assess the hearing fee at two gold mohurs.


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