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Case Number

Appeal from Appellate Order No. 206 of 1926

Advocates

Dr. Naresh Chandra Sen Gupta and Babu Urukramdas Chakravarty for the Appellant.
Babu Jitendra Kumar Sen Gupta for the Respondents.

Judges

Mukerji
Roy, JJ.

Acts

provisions of sec. 174 of the Bengal Tenancy Act.
provision of sec. 18 of the Limitation Act.
sec. 153 of the Bengal Tenancy Act
sec. 153 of Bengal Tenancy Act
sec. 18 of the Limitation Act
sec. 153, Bengal Tenancy Act,

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

This appeal arises from proceedings to set aside a sale held in execution of a decree obtained in a suit for rent. The judgment-debtor (petitioner) applied to set aside the sale; the Munsif dismissed that application. The judgment-debtor appealed to the District Judge, who ordered the sale to be set aside. The decree-holder (the auction-purchaser) has preferred the present appeal against the District Judge's order. An application under Section 115 of the Code of Civil Procedure was also filed on behalf of the decree-holder directed against the District Judge's order.

It is conceded that the Munsif who passed the decree and the order refusing to set aside the sale had final jurisdiction under Section 153 of the Bengal Tenancy Act.

Legal Issues Presented

Whether the order of the Munsif refusing to set aside the sale was an order from which no appeal lay because of the prohibition in Section 153 of the Bengal Tenancy Act, or whether the proviso/exceptions to Section 153 (as interpreted in authority) made such an order appealable.
Whether, in the circumstances of this case, the present Court should interfere with the District Judge's order setting aside the sale by exercising its powers (including under Section 115 CPC) or by allowing the appeal.

Arguments of the Parties

Appellant's (Decree-holder) Arguments

The order passed by the Munsif was one from which no appeal lay because the Munsif had final jurisdiction under Section 153 of the Bengal Tenancy Act.
By reason of the explanation added to Section 153, a question as to the regularity of the proceedings in publishing or conducting a sale in execution of a decree for arrears of rent is not a question relating to title to land or some interest in land; therefore the order refusing to set aside the sale is not within the proviso and is not appealable.
Reliance was placed on the effect of the explanation to Section 153 to counter Full Bench authority that had held otherwise.

Respondent's (Judgment-debtor / successful in appeal below) Arguments

The order of the Munsif is covered by the exception/proviso in Section 153 because it decides a question relating to title to land or to some interest in land as between parties having conflicting claims (i.e., whether the sale should be set aside as between the decree-holder/purchaser and the judgment-debtor).
Reliance was placed on the Full Bench decision in Kali Mandal v. Ramsarbaswa Chakravarti, which held that an order setting aside or declining to set aside a sale in execution of a decree for rent (where the decree-holder is the purchaser) falls within the proviso to Section 153 and is appealable.
The Respondent further relied on subsequent decisions of this Court (Beni Madhab Ray v. Bissessur Bharti; Arjun Dass v. Gunendra Nath Basu-Mallick; Nabin Chandra Chowdhury v. Bepin Chandra Roy Chowdhury) for the proposition that the effect of the Full Bench decision was not completely nullified by the later Explanation to Section 153.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court (as discussed in the opinion)
Kali Mandal v. Ramsarbaswa Chakravarti (Full Bench)	Held that an order setting aside or declining to set aside a sale in execution of a decree for rent, where the decree-holder is the purchaser, falls within the proviso to Section 153 of the Bengal Tenancy Act and is appealable.	The Respondent relied on this Full Bench authority to contend that the Munsif's order was appealable. The present Court (Mukerji, J.) expressed reluctance to follow the Full Bench conclusion and suggested that if the Full Bench really decided otherwise, the question may require consideration by a larger Bench.
Beni Madhab Ray v. Bissessur Bharti	Examined the Explanation to Section 153 and held that where the question is whether the judgment-debtor complied with the requirements of Section 174 of the Bengal Tenancy Act (i.e., a post-sale compliance question), that question is not one of regularity of publishing/conducting the sale and the Full Bench rule (Kali Mandal) governs.	The present Court noted this decision and explained that Beni Madhab was distinguishable because it concerned compliance with Section 174 (post-sale matter) rather than the regularity of publishing/conducting the sale. The Court further observed that Beni Madhab does not support all the wider propositions attributed to it by the Respondent.
Arjun Dass v. Gunendra Nath Basu-Mallick	The Court, in that matter, treated the application as under Section 47 C.P.C. and stated that a second appeal lies on authority of the Full Bench in Kali Mandal despite Section 153.	The present Court discussed this decision and expressed difficulty in characterizing a question under Order 21, Rule 22 or Section 47 C.P.C. as a question relating to title to land or some interest in land between parties with conflicting claims. The present Court did not accept the broad application of Arjun Dass to the present case.
Nabin Chandra Chowdhury v. Bepin Chandra Roy Chowdhury	One Judge opined that fraud in publishing or conducting a sale is not covered by the Explanation to Section 153; the other Judge treated the matter on the footing that a decision on limitation was not a finding as to irregularity and thus not within the Explanation.	Mukerji, J. rejected both lines of reasoning in that case for present purposes, refusing to treat fraud as separate from irregularities for the purpose of the Explanation to Section 153 and disagreeing that a limitation finding necessarily amounts to a decision on title or conflicting claims.

Court's Reasoning and Analysis

The Court conducted a two-part analysis: first, whether an appeal lay from the Munsif's decision in view of Section 153 of the Bengal Tenancy Act (and the Explanation subsequently added to it); and second, whether, in any event, the decree-holder was entitled to relief from this Court.

On the appealability issue, the Court set out the competing contentions:

The Respondent asserted that the Munsif's order was within the proviso to Section 153 because it decided a question relating to title or interest in land between conflicting parties (i.e., whether the sale should be set aside as between the decree-holder purchaser and the judgment-debtor), and relied on the Full Bench decision in Kali Mandal.
The Appellant relied upon the Explanation to Section 153 that excludes questions as to the regularity of proceedings in publishing or conducting a sale in execution of a decree for arrears of rent from being treated as questions relating to title or interest, and thus argued no appeal lay.

The Court reviewed the authorities relied upon by the parties (including Kali Mandal, Beni Madhab Ray, Arjun Dass, and Nabin Chandra) and analyzed their scope and distinctions:

Beni Madhab Ray was distinguished because it involved a question of compliance with Section 174 (a post-sale ground) rather than a question of regularity in publishing or conducting the sale; the Court found that Beni Madhab did not support the broader position ascribed to it by the Respondent.
The Court expressed difficulty in treating questions raised under Order 21 (such as service irregularities) or under Section 47 C.P.C. as questions of title or conflicting claims for the purpose of Section 153, and thus found Arjun Dass's reasoning problematic for broad application.
As to Nabin Chandra, the Court rejected both the view that fraud in publishing/conducting a sale is outside the Explanation and the alternative view that a limitation finding necessarily avoids the Explanation; the Court would not separate fraud from irregularity for these purposes.

Ultimately, Mukerji, J. indicated an inclination to the view that no appeal lay from the decision of the learned Munsif under Section 153, and if the Full Bench had decided otherwise, a larger Bench might need to consider the question. However, the Court did not pursue the point further because it concluded that, on the facts, the Appellant was not entitled to any relief from this Court whether or not an appeal originally lay to the District Judge.

On the merits/factual findings, the Court reviewed the findings of both the Munsif and the District Judge:

The Munsif had found that evidence about service of writs of attachment and sale proclamation was very meagre, that the price fetched at sale was grossly inadequate, and that the value was grossly mis-stated in the sale proclamation; nevertheless, the Munsif dismissed the application to set aside the sale on the ground of limitation.
The Court observed that the Munsif may have taken a wrong view on limitation by not considering that wilful suppression of sale notices could give rise to an inference of fraud, and if fraud were established it would be for the decree-holder to show that the petitioner had such knowledge as would disentitle him to rely on Section 18 of the Limitation Act.
The District Judge, on appeal, found indications that the decree had been obtained and execution proceedings started against a dead man; further, the District Judge found there was no proper service of notices under Order 21, Rules 22 and 66; and that the gross understatement of value in the sale proclamation and suppression of notices revealed deliberate falsehood by the decree-holder.
The Court held these findings of the District Judge to be proof against interference, whether on appeal or in revision, and concluded that the Appellant was not entitled to relief from this Court.

Holding and Implications

Holding: The appeal is dismissed with costs, and the application in revision is rejected. The hearing-fee was assessed at two gold mohurs. Roy, J. agreed with the judgment.

Implications and direct effects (as stated in the opinion):

The direct court orders: the appeal by the decree-holder is dismissed with costs; the application in revision (under Section 115 CPC) is rejected.
The opinion records that the District Judge had ordered the sale to be set aside; the Court's dismissal of the decree-holder's appeal and rejection of the revision application are the final determinations stated in this opinion.
The Court noted that questions about the scope of Section 153 and the effect of the Explanation may require determination by a larger Bench, but the present decision did not create a new binding precedent on that larger statutory question because the Court resolved the matter on the facts before it and dismissed the appeal on those factual findings.

Note: This summary is based exclusively on the content of the provided opinion. No information has been added that was not expressly present in the opinion.

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Maharaj Bahadur Sing Decree-Holder, Opposite Party, v. Kurani Mal Judgment-Debtor, Petitioner, .

The Judgment of the Court was as follows:—

Mukerji, J.:— This appeal arises out of proceedings held for setting aside a rent sale. The application to set aside the sale was dismissed by the Munsif. There was an appeal preferred from this order to the District Judge and the learned Judge has ordered the sale to be set aside. From the order of the learned District Judge the present appeal has been preferred by the decree-holder. An application under sec. 115 of the Code of Civil Procedure, directed against the said order, has also been filed on his behalf. The sale was held in execution of the decree which had been obtained in a suit for rent and the said decree as well as the order refusing to set aside the sale were passed by a Munsif, who, it is conceded, had final jurisdiction to deal with the matter under sec. 153 of the Bengal Tenancy Act.

The first ground that has been urged on behalf of the decree-holder is to the effect that the order which was passed by the Munsif in the present case was one from which no appeal lay. It has been contended on behalf of the Respondent that the order is covered by the exception contained in sec. 153 as it decides a question relating to title to land or to some interest in land as between parties having conflicting claims thereto; in other words, it has been urged that the question as to whether the sale should or should not be set aside is a question which relates to title to land or to some interest in land as between the decree-holder who is the auction-purchaser in the present case and the judgment-debtor on the other and that therefore the order is covered by this exception. On behalf of the Appellant it has been pointed out that by reason of the explanation to sec. 153 a question as to the regularity of the proceedings in publishing or conducting a sale in execution of a decree for arrears of rent is not a question relating to title to land or to some interest in land as between parties having conflicting claims thereto. On behalf of the Respondent in support of the contention that an appeal did lie from the decision of the Munsif reliance has been placed upon the Full Bench decision of this Court in the case of Kali Mandal v. Ramsarbaswa Chakravarti . In that case it was decided by a Full Bench of this Court, one of the learned Judges who sat in that Bench dissenting, that an order setting aside or declining to set aside a sale in execution of a decree for rent, the decree-holder being the purchaser, falls within the proviso to sec. 153 of the Bengal Tenancy Act, and is appealable although there could be no appeal from the decree in the suit on account of the prohibition contained in that section. The answer that is given on behalf of the Appellant is that this decision is met by the explanation which was subsequently introduced by sec. 153 of the Bengal Tenancy Act to which I have already referred. The Respondent relies upon certain decisions of this Court to which I shall presently refer for establishing the position that notwithstanding the introduction of this explanation the effect of the aforesaid Full Bench decision has not been altogether nullified. The first case relied upon is that of Beni Madhab Ray… v. Bissessur Bharti…Opposite Party. . This was a case in which a question arose as to whether a sale held in execution of a decree for rent was to be set aside on the ground that the judgment-debtor had applied for setting it aside after making the necessary deposit in compliance with the provisions of sec. 174 of the Bengal Tenancy Act. In deciding this case the learned Judges observed thus:—

“The explanation provides that a question as to the regularity of the proceedings in publishing or conducting a sale in execution of a decree for arrears of rent is not a question relating to title to land or to some interest in land as between parties having conflicting claims thereto. In the case before us, no question arises as to the regularity of the proceedings in publishing or conducting the sale. The question raised is whether the judgment-debtor has complied with the requirements of sec. 174 for reversal of the sale: we are therefore of opinion that the case is not covered by the explanation and that the rule laid down in Kali Mandal v. Ramsarbaswa Chakravarti governs the matter.” It will be seen that the ground upon which the sale was sought to be set aside in that case was not one which can be said to relate to the regularity of the proceedings in publishing or conducting the sale but that something had been done after the sale was over which, under the law, entitled the judgment-debtor to claim that the sale should be set aside. The next case that has been referred to in this connection is that of Arjun Dass… v. Gunendra Nath Basu-Mallick…Opposite Party. . In that case a sale was sought to be set aside under sec. 47 and Or. 21, r. 90 of the Code of Civil Procedure and one of the grounds of irregularity alleged in the case was that there was no proper service of notice under Or. 21 r. 22 of the Code. The Court of first instance in that case refused to set aside the sale and that order was upheld on appeal by the District Judge. From the decision of the District Judge in that case an application in revision had been filed before this Court and in dealing with that application the learned Judges observed: “We may finally add that although the application must be deemed to have been made under sec. 47 of the Code of 1908, a second appeal may at first sight seem barred under sec. 153, Bengal Tenancy Act, as the claim in the suit for rent was under Rs. 100; but a second appeal does lie in this case on the authority of the decision of the Full Bench in Kali Mandal v. Ramsarbaswa , the effect of which, as explained in Beni Madhab v. Bissessur has not been completely nullified by the Explanation added to sec. 153. With the utmost deference to the learned Judges I must say I do not find anything that was said in Beni Madhab v. Bissessur as supporting the view that the learned Judges took. If the question that arose under Or. 21, r. 22 is not a question relating to the regularity of proceedings in publishing or conducting the sale, it is not within the explanation, but as a question under sec. 47, C.P.C I find it extremely difficult to regard it as a question relating to title to land or to some interest in land as between parties having conflicting claims thereto. The third decision to which our attention has been drawn is the case of Nabin Chandra Chowdhury v. Bepin Chandra Roy Chowdhury in which one of the learned Judges expressed an opinion that the question as to fraud in publishing or conducting a sale is not covered by the Explanation to sec. 153 of Bengal Tenancy Act and that the Explanation only applies to cases where there is a question of irregularity in publishing or conducting a sale. This view was not approved of by the other learned Judge who dealt with the case and he proceeded on the footing that when the Munsif had dismissed an application made more than thirty days after the sale on the ground that sec. 18 of the Limitation Act could not be availed of by the Petitioner, that was not a finding upon a question as to the irregularity of the proceeding in publishing or conducting a sale and the Explanation to sec. 153 of the Bengal Tenancy Act consequently did not apply With the greatest respect to both the learned Judges I am unable to agree in the view that was taken by either of them. I am not prepared to accede to the proposition that fraud in publishing or conducting a sale is meant to be kept separate from irregularities in the publication or conduct thereof for the purpose of the Explanation to sec. 153 of the Bengal Tenancy Act nor am I able to subscribe to the proposition that because the Explanation to sec. 153 does not cover the case of a decision on the question of limitation, the said decision, therefore, necessarily amounts to a decision on a question of title or conflicting claims between the decree-holder and the judgment-debtor. Personally I do not feel pressed by these decisions and I am inclined to take the view that in a case like this no appeal lay from the decision of the learned Munsif; and if the Full Bench has really decided otherwise it will, perhaps, on a proper occasion, be necessary for a much larger Bench to consider the question. 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 powers under sec. 115 of the Code of Civil Procedure. If an appeal did lie to the District Judge then there is a second appeal to this Court and possibly also as has been held in some cases, if no appeal lay to him an appeal lies from his decision to this Court. On such an appeal it is not possible to interfere with his findings on the facts. The learned Munsif found in the case that the evidence about service of writs of attachment and sale proclamation was very meagre and that the price fetched at the sale was grossly inadequate and the value was grossly mis-stated in the sale proclamation. Though he came to this finding he dismissed the application to set aside the sale on the ground that it was barred by limitation. On the question of limitation the learned Munsif appears to have taken a wrong view as he did not take into account the principle that if there has been a wilful suppression of the sale notices an inference might be drawn to the effect that there was fraud; and if fraud was established then it was for the decree-holder to establish that the Petitioner had knowledge at a time which would disentitle him to avail of the provision of sec. 18 of the Limitation Act. The learned District Judge's findings are to the effect that there are indications to show that a decree was obtained against a dead man, and that the execution proceedings were certainly started against a dead man. As regards service of notices under Or. 21, r. 22 and Or. 21, r. 66, the learned Judge has found that there was no proper service of these notices. He has recorded a finding to the effect that the gross under-statement of value in the sale proclamation and suppression of the notices reveal a deliberate falsehood on the part of the decree-holder. These findings are proof against appeal as well as revision.

In this view of the matter the appeal must be dismissed with costs, hearing-fee being assessed at two gold mohurs and the application in revision must be rejected.

Roy, J.:— I agree.

S.C.M

Maharaj Bahadur Sing Decree-Holder, Opposite Party, v. Kurani Mal Judgment-Debtor, Petitioner, .

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's (Decree-holder) Arguments

Respondent's (Judgment-debtor / successful in appeal below) Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Maharaj Bahadur Sing Decree-Holder, Opposite Party, v. Kurani Mal Judgment-Debtor, Petitioner, .

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