Bungshidhar Haldar vs Kedar Nath Mondal and others

Rampini, J.—This is a Rule calling on the opposite party to show cause why an order of the District Judge of the 24-Pergunnahs, setting aside an order of the Munsiff of Diamond Harbour u/s 310A, C.P.C., cancelling a sale of the tenure, of a portion of which the applicant is the proprietor, and on the lands of which his dwelling-house is situate should not be set aside; the grounds on which the Rule was obtained are (1) that no appeal lay to the District Judge and (2) that the order of the Munsiff was one u/s 310A, C.P.C., and not u/s 174 of the Bengal Tenancy Act as held by the District Judge. On behalf of the opposite party it has been urged before us (1) that the order of the Munsiff was one under sec. 244, C.P.C., and that therefore an appeal lay to the District Judge and a second appeal lies to this Court and that in these circumstances the case is not one for our interference u/s 622, C.P.C. (2) that the provisions of section 310A are not applicable to the sale set aside by the Munsiff, (3) that the applicant being the owner of only a portion of the tenure is not affected by the sale and therefore, cannot take advantage of the provisions of section 310A, and (4) that the order of the Munsiff was passed without notice to the opposite party, who is the auction-purchaser at the sale of the tenure.

We, however, do not think the order of the Munsiff is one under the provisions of sec. 244, C.P.C. It is no doubt an order relating to the execution of a decree but it does not determine a question arising between the parties to the decree or their representatives. The question whether the sale should or should not be set aside is one between the auction purchaser, and the applicant, who is not the judgment-debtor nor his representative, inasmuch as he purchased his interest in the tenure not from the judgment-debtor, but from an assignee of an assignee of the judgment-debtor, and this purchase was made before the person, who is now the judgment-debtor, became liable under the decree in execution of which the tenure was sold. If then the order of the Munsiff was properly passed u/s 310A, C.P.C., no appeal lay to the District Judge, and the case is one for our interference u/s 622, C.P.C.

We are, further, of opinion that the order was passed by the Munsiff u/s 310 A, C.P.C. The application was made to him under that section, and though the sale was held under the provisions of the Tenancy Act, the ruling in Janardhan v. Kali (sic) I.I.R. 23 Cal. 303 from which we see no reason to dissent, shows that the provisions of section 310A, may be applicable to sales of tenures held under the provisions of the Tenancy Act, and that persons other than the judgment-debtor whose immovable property has been sold may apply under that section to have the sale set aside on complying with the conditions prescribed by the section.

The applicant is certainly a person whose immovable property has been sold within the meaning of section 310A, C.P.C. He is a co-sharer, we understand, in the tenure sold. His interest does not seem to us to amount to an " incumbrance " or to a protected interest which would not be affected by the sale.

The opposite party, being the auction-purchaser, was no doubt entitled to have a notice issued to him before the sale was set aside; see janardhan v. Kali Kristo (1). But the propriety of the Munsiff''s order is not before us. We can, therefore, in no way interfere with it. We can only deal with the District Judge''s order, to set aside which the Rule has been obtained. We accordingly make the Rule absolute with costs.