Beni Madhab Ray v. Bissessur Bharti Opposite Party.

We are invited in this Rule to set aside an order made by the Court of Appeal below on the ground that the appeal to that Court was incompetent and the order in question was consequently made without jurisdiction.

It appears that the Petitioner obtained a decree for rent on the 30th November, 1908. The claim was under Rs. 50 in value and the Munsif who tried the suit was invested with final jurisdiction under sec. 153 of the Bengal Tenancy Act. An appeal was preferred against that decree notwithstanding these circumstance?, and was apparently heard without objection. The appeal was allowed in part and the decree of the primary Court was varied in favour of the Appellant on the 22nd February, 1910. In execution of that decree, the holding was sold on the 20th June following and was purchased by the decree-holder. On the 16th July, 1910, the judgment-debtor brought into Court a sum adequate in his estimation for the reversal of the sale under sec. 174 of the Bengal Tenancy Act Objection was taken to the sufficiency of this sum and was allowed by the Court as the poundage-fee had not been deposited. The result was that the application under sec. 174 was refused and the sale was confirmed on the 15th August, 1910. This order was made by a Munsif who was invested with final jurisdiction under sec. 153 of the Bengal Tenancy Act. The judgment-debtor then preferred an appeal to the District Judge. An objection was taken on behalf of the decree-holder auction-purchaser Respondent to the competency of the appeal but was overruled. The learned Judge then heard the appeal on the merits and allowed it. He held that the judgment debtor was not bound to deposit the poundage-fee, as under the rules of this Court the decree-holder upon reversal of the sale would be entitled to a refund of all the sums he had deposited on that account. The District Judge accordingly reversed the sale. We are now invited to set aside this order on the ground that the appeal to the Judge was incompetent.

In answer to the Rule it has been contended, first, that the appeal was competent, secondly, that as laid down in Kishori Mohan v. Saroda Moni(1) this Court ought not to interfere because the order which has been made by the District Judge is right on the merits and should not be disturbed; and, thirdly, that as the decree under execution was made without jurisdiction, the sale is a nullity and the reversal of such a sale does not operate to the prejudice of the auction-purchaser.

In so far as the question of competency of the appeal is concerned, we are of opinion that the view taken by the District Judge is well-founded. It has not been disputed that an order of this description made under sec. 174 of the Bengal Tenancy Act is ordinarily appealable as explained by this Court in Sital Rai v. Nanda Lal(2) notwithstanding the contrary view taken in Kishori Mohan v. Saroda Moni which does not give effect to the decision of the Judicial Committee in Prosunno Kumar Sanyal v. Kali Das Sanyal(3), but it is argued on behalf of the Petitioner that the appeal is barred by the provisions of sec. 153 of the Bengal Tenancy Act, because the Munsif who made the order was invested with final jurisdiction under that section. In answer to this argument it is pointed out by the learned Vakil for the Opposite Party that the case falls within the principle recognised by a Full Bench of this Court in Kali Mondal v. Ramsarbaswa Chuckerburty, where it was ruled that an order setting aside or refusing to set aside a sale held in execution of a rent decree is an order which decides a question relating to title to land as between parties having conflicting claims thereto. The learned Vakil for the Petitioner, however, argues that the effect of the decision of the Full Bench has been completely nullified by the explanation subsequently added to sec. 153. No doubt, as pointed out in the case of Sheo Parsan Ray,…Judgment-Debtor, v. Bishen Pargash Narain Singh…Decree-Holder, Opposite Party.(5), the effect of the explanation is to restrict considerably the effect of the decision of the Full Bench. But we are unable to uphold the contention that the decision of the Full Bench has been practically superseded by the explanation. 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 Mondal v. Ramsarbaswa Chucketburty governs the matter. We are consequently of opinion that the appeal to the Judge was competent.

In this view, it becomes unnecessary to consider whether the order of the Judge is right on the merits, but we may point out that his decision is in accordance with that of this Court in Raghubar Dayal v. Jadunandan Messir and his conclusion cannot thus be successfully assailed by way of either revision or appeal.

In this view it is needless to consider the third ground urged by the learned Vakil for the Opposite Party, but we may add that we do not feel disposed to accept the soundness of the contention that it was open to the judgment-debtor to challenge the validity of the decree in execution proceedings after that decree had been executed without objection and the sale had actually taken place.

The Rule is therefore discharged with costs one gold mohur.

Rule discharged.