Basi Poddar vs Ram Krishna Poddar and others and Hari Mohan Poddar and others

Macpherson, J.—We granted this rule u/s 622 of the CPC for the purpose of considering the legality of an order passed by the first Munsiff of Chandpore refusing an application made by the petitioner u/s 310 A of the Code to set aside a sale of certain immovable property. It appears that the property had been brought to sale in execution of a decree obtained upon a mortgage and that the decree-holder himself became the purchaser. Before the institution of the suit which resulted in this decree the judgment-debtor had executed a deed of sale purporting thereby to transfer his interest in the property to the petitioner and it was upon the basis of this sale that the petitioner preferred his application to the Munsiff. The application was opposed by the auction purchaser on the ground that the sale set up by the petitioner was a merely benami transaction; that the property did not belong to him; and that he was not entitled therefore to have the sale set aside under the provisions of section 310A. The Munsiff after a somewhat elaborate enquiry into the genuineness of the petitioner''s purchase came to the conclusion that the auction purchaser''s contention as to its benami character was well founded and acting on the view that the beneficial owner of property is alone competent to apply under the section in question he refused to set aside the sale.

In this we think the Munsiff was wrong. Under circumstances such as the present it appears to us that the language of section 310A ought not to receive a too literal interpretation. There is no question in the present case between the true owner of the property and the benamidar, nor would the setting aside of the sale at the instance of the latter prejudicially affect the title of the true owner. It is moreover immaterial to the other parties concerned whether the payments for which the section provides, are made by the one or by the other. The power of the benamidar, to affect the property which he holds benami is recognised for many purposes. He may under certain conditions confer a good title on a purchaser and the true owner may be bound through his medium in other ways. There are again certain functions of ownership which the benamidar may and indeed is obliged as a consequence of the property standing in his name, to perform. But apart from such considerations, we think that a benami owner of property applying u/s 310A may properly be taken-- unless the contrary be shown which is not the case here--to be acting on behalf and under the authority of the true owner, and that is in our opinion, sufficient to satisfy the section.

It was objected by the pleader for the opposite party that this was not a case in which it was open to us to interfere u/s 622 of the CPC inasmuch as the Munsiff was bound before setting aside the sale to enquire and determine whether the applicant was the owner of the property and equally bound when he found that he was not the owner to refuse the application. If, however, the petitioner was competent to make the application it was the duty of the Munsiff, on the fulfilment of the requirements of section 310A to set aside the sale. Those requirements have been satisfied in the present case and the petitioner was in our opinion as we have said competent to apply. The Munsiff therefore in refusing to set aside the sale failed to exercise a jurisdiction vested in him by law, his order is accordingly open to review u/s 622. We make the rule absolute and reversing the order of the Munsiff direct that the sale be set aside. The petitioner is entitled to his costs both of this and the Munsiff''s Court. We assess the costs of this Court at I gold mohur.