Ajodhya Singh vs Sir Kameshwar Singh Bahadur

Agarwala, J.—The question of jurisdiction which arises in each of these applications is the same. The material facts are also similar. It will suffice, therefore, to set out the facts of one case, namely, civil Revision No. 51. Opposite party l obtained a decree for arrears of rent at the rate of Rs. 19 against the petitioners and opposite parties 2 to 8. Execution was first taken out with the object of putting up for sale the holding in respect of which the rent had been decreed. In a later proceeding, however, execution was taken out against another holding which was attached. In -the sale proclamation its value was stated to be Rs. 16. At the execution sale which followed the holding was purchased by the decree-holder for Rs. 23 on 17th December 1936. On 18th February 1942, an application was made to set aside the sale on the ground of material irregularity and fraud in publishing and conducting the sale. It was alleged that the applicant had no knowledge of the sale until 11th February 1942. The Munsif to whom this application was made was a judicial officer specially empowered by the local Government to exercise final jurisdiction in the matter under Clause (b)'' of Section 153, Tenancy Act. He held that the execution processes had been fraudulently suppressed and set aside the sale. The Munsif also found in each of these cases that the property advertised for sale had been grossly under-valued. Against that order there was an appeal by the decree-holder which resulted in the Munsif''s order being set aside and the sale confirmed. It is now contended that no appeal lay from the order of the Munsif and that the appellate order was, therefore, made without jurisdiction. In so far as it is material to the present case, Section 153, Tenancy Act, which is relied upon by the petitioners, provides as follows:

An appeal shall not lie from any decree or order passed in the first instance in any suit instituted by a landlord for the recovery of rent where the decree or order is passed by any judicial officer specially empowered by the local Government to exercise final jurisdiction under this section, and the amount claimed in the suit does not exceed fifty rupees, unless the decree or order has decided a question relating to title to land, or to some interest in land as between parties having conflicting claims thereto.

To this section there is an Explanation which was added in 1907, namely:

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 the land as between parties having conflicting claims thereto.

As the application to set aside the action sale arose in execution of a decree made in the suit instituted by the landlord for the recovery of rent, and the order setting aside the sale was made by a judicial officer specially empowered by the local Government to exercise final jurisdiction and the amount claimed in the suit did not exceed fifty rupees, it is contended that the order of the Munsif was final. On behalf of the opposite party, however, it was contended that the order of the Munsif setting aside the sale has decided a question relating to title to land or to some interest in land as between parties having conflicting claims thereto, and that, accordingly, an appeal lies. In reply to this contention the petitioner relies on the Explanation to the section which, it is submitted, debars an appeal in a case where a question relating to title to land or to some interest in land as between parties having conflicting claims thereto arises only by reason of the fact that an execution sale has been set aside for an irregularity or fraud in publishing and con-ducting the sale.

The opposite party, "however, relies on the word "regularity" in the Explanation, and contends that an appeal is barred only where a question arises as to the regularity of pro-ceedings in publishing and conducting a sale and not where a sale has been set side on the ground of fraud in publishing or conducting a sale. This was the view taken by Wort J. sitting singly in Jainarainsingh v. Rameshwar Singh Bahadur AIR 1930 Pat. 371 , which followed certain decisions of the Calcutta High Court on the subject. No other decision of this Court was brought to our notice. The decisions of the Calcutta High Court relating to the interpretation of Section 153 are conflicting. On the one hand, there are cases which take the view adopted by Wort J. and, on then other, there are cases which hold that the result of the explanation to Section 153 is to bar the right of appeal where, the sale has been set aside either on the ground of mere irregularity or on the ground of fraud. All the Calcutta cases on the point were referred to in the judgment of Rankin C. J. in Jugal Chandra Anuni Vs. Ramesh Chandra Chakravarty and Others, , an observation which is relied upon by the opposite party. In that case a tenant defendant had made an application to set aside a sale held in execution of a decree for arrears of rent more than two years after the sale had been held. The Court of first instance found that there had been material irregularity in publishing and conducting the sale, and that this material irregularity had occasioned a substantial loss to the judgment-debtor. With regard to the delay in making the application to set aside the sale, the Court of first instance found that the judgment-debtor had been kept out of knowledge of the sale by the fraud of the decree-holder, and was, therefore, entitled to the benefit of Section 18, Limitation Act. He accordingly allowed the application and set aside the sale. This decision was reversed on: appeal to the District Judge. The learned Chief Justice observed that, in view of the. conflict of decisions in the Calcutta High Court, if the Munsif had proceeded on the ground of fraud, it might perhaps have been advisable to refer the case to a Full Bench. It is this observation which is relied upon by the learned advocate for the opposite party. I do not understand the learned Chief Justice to have favoured the view that irregularity motived by fraud is on any different footing from an irregularity occasioned by negligence. Although the explanation to the section might have been more artistically worded, it is obvious that the intention of the Legislature was to restrict the right of appeal in petty cases, and it is the duty of the Courts to give effect to this intention in so far as it does not conflict with the actual language used. To my mind, it is reasonably, clear that the Legislature did not intend that there should be an appeal in petty cases where a sale had been set aside on the ground of irregularity whether the irregularity be occasioned by fraud or negligence in publishing and conducting the sale, and I agree with the decisions of the Calcutta High Court in which it has been held that fraud in publishing or conducting sale is not meant to be kept separate from irregularities in the publication and conduct thereof for the purposes of the explanation to Section 153. I would, therefore, set aside the order of the lower appellate Court and restore that of the Munsif. The petitioner is entitled to costs here and in the Courts below. There will be one hearing fee in all the four applications.

Fazl Ali, C.J.

I agree.