Macpherson, J.:— We think the Judge had no jurisdiction to entertain an appeal against an order, made by the Munsif, under Section 174 of the Bengal Tenancy Act. The judgment-debtor applied under that section to have a sale set aside on his making the necessary deposit, and the Munsif rejected the application on the ground that the section did not apply to the sale in question. The judgment-debtor then appealed to the Judge, who reversed the Munsif's order and directed him to deal with the application as one properly coming within the provisions of Section 174. The Munsif then set aside the sale. The auction-purchaser was not made a party to the appeal, and the order of the Judge was made behind his back. Neither in the Tenancy Act nor in the Civil Procedure Code is there any provision for an appeal against an order under Sec. 174 of the Tenancy Act. The Judge held that an appeal lay under Sec. 244 of the Procedure Code, but the question was not one between the parties to the suit. It was a question between the auction-purchaser and the judgment-debtor, and the auction-purchaser was a necessary party in the case, in which it arose. The judgment-debtor by omitting to join him in the appeal could not bring the case under Sec. 244, and under any circumstances the Munsif's order should not have been reversed without hearing what the auction-purchaser had to say.
The Judge's order was, therefore, made without jurisdiction. The case is before us under Sec. 622 of the Procedure Code. If the Munsif's first order refusing to set aside the sale was wrong, and if his second order setting it aside was a right order, although made in pursuance of a direction which the Judge had no power to make, we ought not, we think, to interfere and set aside the sale. We must consider, therefore, whether the Munsif's first order was wrong and whether Sec. 174 applies to the sale. The suit, in which the decree was made, was for arrears of road-cess due on account of lakheraj land-Sec. 64A of the Cess Act enacts that such arrears may be recovered from the owner, holder or occupier of the land by any means and by any process, by which the amount might be recovered, if it were due on account of rents of a transferable tenure or holding.
This means that it may be recovered by distraint or by a suit under the provisions of the Tenancy Act, and that the decree may be enforced as a decree for the rent of a transferable tenure or holding.
One mode of enforcing such a decree is certainly by the sale of the tenure or holding, and the procedure to be followed in connection with the sale must be that provided by Chapter XIV of the Tenancy Act, and Sec. 174, which is contained in that Chapter, merely deals with such procedure. Whether all the incidents attached to the sale of a tenure or holding would attach to the sale of the land, it is unnecessary to consider. We think, therefore, that the Judge was right, and that Sec. 174 does apply. It was contended for the auction-purchaser that cl. 5 of Sec. 3 of the Bengal Tenancy Act, by expressly declaring that rent in certain portions of that Act shall include money recoverable as rent by any enactment in force, has, by implication, limited the scope of Sec. 64A of Act IX of 1880 (B.C) we do not think this contention is sound. We think the effect of cl. 5 of Sec. 3 of the Bengal Tenancy Act is not to limit the scope of Sec. 64A of the Cess Act, but is rather to extend it by making certain provisions relating to interest, &c, in the case of rent applicable to the recovery of cesses.
It is said that part of the purchase-money was attached and taken by another creditor of the judgment-debtor. But the affidavit does not state that the purchaser has not received back the full amount of the purchase-money plus 5 per cent. Should the purchase-money not have been paid to the purchaser owing to any part having been otherwise disposed of, the Munsif's order will not take effect until the whole amount, plus 5 per cent, is refunded, and, if any portion of it has to be made good, the judgment-debtor must deposit it in Court within 10 days of the time, when the order reaches the lower Court, otherwise the sale will stand.
The rule is discharged. We make no order as to costs.
(Reported S.R)