1. This is an application under Section 115 of the CPC, to set aside the judgment of the Subordinate Judge of Jessore dated 31st August 1929 whereby he reversed the decision of the Munsif of Narail. An application had been made to that Munsif by the present petitioner and another person to set aside an auction sale on the ground that the decree-holder had colluded with the judgment-debtor and suppressed the sale proclamation and also that the property had been purchased by the judgment-debtor in the benami of one Nishikanto Chakravarti who is one of the opposite parties in this matter. The petitioners based their case upon the fact that there was a subordinate tenancy in respect of a portion of the land which had been sold. It appears however from the actual test of their application that their case was that they were occupancy raiyats and therefore it would seem that in any event, no matter who the purchaser of the property might be, their interest would be protected by virtue of the provision of Section 116 of the Ben. Ten. Act.
2. Bearing that in mind it seems doubtful that it can properly be said that the petitioners were persons interested in the sale either within the provisions of Section 173 of the Ben. Ten. Act, or under O. 21, R. 90 of the CPC. The application which they made purported to have been made under Section 47 of the CPC, and under O. 21, R. 90, and nothing whatever was said in the body of the petition in the way of a direct reference to Section 173 of the Ben. Ten. Act. It is quite true that the petition was based on a twofold ground: first of all, as I have said, put shortly, that the notices were suppressed; and secondly, that the auction-purchaser was in fact a benamidar of the judgment-debtor. To that extent it might perhaps be argued that the petition was presented under the provisions of Section 173 of the Ben. Ten. Act, as well as under the provisions of O. 21, R. 90 of the CPC.
3. The present application before me is based on the contention that no appeal lies from the decision setting aside the sale under the provisions of Section 173 of the Ben. Ten. Act. Upon that point the authorities are not altogether conclusive. There is for example the case of Rogliu Singh v. Misri Singh . [1894] 21 Cal. 825., holding that no appeal lies when the question arises between person who are parties to the suit; there is also the case of Surendra Nath Chowdhury v. Lahshan Chandra Roy . A.I.R 1926 Cal. 213, where it has been held that no appeal lies at the instance of the auction-purchaser against an order setting aside a sale under Section 173 of the Ben. Ten. Act.
4. For our present purposes I do not consider it necessary further to consider that point because it seems to me in the circumstances of this particular case that it would not be right that I should interfere with the decision of the lower appellate Court and this for several reasons. First of all as I have said it is doubtful to my mind whether the present petitioner had any locus standi to make the application that was made to the Munsif at all. Whether the property was sold to the judgment-debtor or to his benamidar or whether the sale was set aside and the property sold to some other person would apparently make no difference to the position of the present, petitioner she being protected under S. 116 as I have already indicated. Secondly even supposing that the present petitioner was entitled to make the application as she did in the ordinary way it is admitted that in this instance the application was in fact out of time and barred by the provisions of the statute of limitation, whether an application could properly be said to have been made under Section 173 of the Ben. Ten. Act, or not that has been differently decided.
5. The case of Haripada Haldar v. Barada Prasad Roy Chowdhury . A.I.R 1925 Cal. 351, decided that an application to set aside a sale under S. 47 or under O. 21, R. 90, is governed by Article 166, Lim. Act, and consequently such an application is barred if made after 30 days. It is conceded that the present application was in fact made after 30 days from the date of sale. On that ground alone it follows that the learned Munsif was wrong in admitting the matter and giving his decision in favour of setting aside the sale. Thirdly I am not satisfied that this application for the purpose of deciding whether there could be an appeal can properly be said to have been made under S. 115. As I have pointed out Section 173 of the Ben. Ten. Act, was not referred to in the application and it was only when the matter was argued before the learned Munsif that the question of the application of that particular section was actually made. Bor all these reasons even upon the assumption that there was no right of appeal from the decision of the Munsif—in this connexion I bear in mind the case of Durga Charan Sirsar v. Bishnu Pada Sana . A.I.R 1927 Cal. 833—even upon that assumption and even if I take the view that the learned District Judge acted outside the scope of his jurisdiction in allowing the appeal and reversing the decision of the Munsif—I am of opinion that this is not a case in which the discretion under S. 115 should be exercised in favour of the petitioner.
6. In this matter I take the same view as that enunciated by Mukerji, J. in Maharaj Bahadur Singh v. Karani Mai . A.I.R 1927 Cal. 633 where the learned Judge at p. 60 of 32 C.W.N, observes:
“In the view that I have taken of the matter I do not propose to pursue the discussion any further because I am of opinion that whether an appeal did lie to the District Judge or not the appellant is not entitled to any relief at our hands. If no appeal lay from the decision of the Munsif then having regard to the facts to which I shall presently refer we shall not be justified in setting aside the order of the District Judge in the exercise of our power under Section 115 of the CPC.”
7. For the reasons I have given I do not think it right to make an order which will have the effect of re-establishing the decision of the learned Munsif which quite clearly ought not to have been made by reason of Article 166, Lim. Act. The rule is accordingly discharged with coses two gold mohurs.
M.N/R.K
8. Rule discharged.