Bhikhi Singh and Others vs Bhanu Mahton and Another

This appeal is from an order passed by the Subordinate Judge of Tirhoot under sec. 174 of the Bengal Tenancy Act. It appears that the decree-holder, who is the Appellant before us, obtained a decree for rent under the Bengal Tenancy Act against the Respondent on the 11th January 1897. An appeal was preferred against this decree to the higher Court; and the judgment of that Court was passed on the 18th. of May 1897, considerably modifying the decree of the Court of first instance. In the meantime, however, the decree-holder applied for execution of his decree, that is, the decree of the Court of first instance; and upon his application the tenure of the Defendant was sold up on the 5th June 1897; the decree-holder himself being the purchaser at the sale. The judgment-debtor then, on the 2nd of July, presented an application for setting aside the sale under sec. 104 of the Bengal Tenancy Act, stating what had taken place, and offering to pay in the amount determined by the lower Appellate Court as justly due to the decree-holder,

The Munsif, to whom the application was made, was of opinion that the judgment-debtor must deposit the full amount as deereed by the Court of first instance. The judgment-debtor, however, did not act up to this order, but tendered only the amounts determined by the Appellate Court together with compensation.

The learned Subordinate Judge has, however, taken a different view from that which the Munsif expressed, and has made an order to the effect that the sale should be set aside upon the judgment-debtor depositing in Court the amount decreed by the Appellate Court on the 18th May 1897.

Against this order the present appeal has been preferred by the decree-holder; and the learned vakil on his behalf has contended that the decree as mentioned in see. 174 is the decree of the Court of first instance which was sought to be executed, and not the decree of the lower Appellate Court, and that therefore the. Subordinate Judge was wrong in holding that upon the judgment-debtor depositing the amount covered by the decree of the Appellate Court, the sale should be set aside.

We think that this contention cannot be supported. Sec. 174 of the Bengal Tenancy Act provides that "where a tenure or holding is sold for an arrear of rent due thereon, then at any time within thirty days from the date of sale, the judgment-debtor may apply to have the sale set aside on his depositing in Court for payment to the decree-holder the amount recoverable under the decree with costs, and for payment to the purchaser a sum equal to five per centum of the purchase-money." The word "decree " here, no doubt primarily refers to the decree as mentioned in sec. 162, namely, the decree of which execution was sought for. But if, in the meantime, that is to say, before the sale is actually held, the decree of the Court of first instance is modified in appeal in favour of the judgment-debtor, then necessarily " the decree" must be the decree of the Appellate Court.

The decree of the Court of first instance had then ceased to exist, and in place thereof came in the decree of the Appellate Court; and therefore it seems to us that the word " decree, " as mentioned in sec. 174, must refer to the decree which was the binding decree between the parties at the time when the sale took place, and the application under that section was made.

We can hardly think that the legislature ever intended that in circumstances like these, the judgment-debtor should have to deposit the amount covered by a decree which did not exist at the time but had been superseded in appeal; for otherwise a manifest injustice would be done to the judgment-debtor.

No doubt the judgment-debtor if he deposits the full amounts covered by the decree of the Court of first instance is not without remedy in regard to the recovery of the excess amount paid. But we do not think that the legislature contemplated that he should be compelled to do so and then seek his remedy elsewhere. Upon these grounds we dismiss this appeal with costs, the hearing fee being assessed at 1 gold mohur.