Golab Chand Ray vs Sheikh Feda Hussain

Edward Chamier, C.J.—In execution of a decree for arrears of rent obtained by one Umdan Bibi against Nazrul Hossain and others certain property was put up for sale on March 9th, 1914, and was purchased by the appellant. A few days before the date fixed for the confirmation of the sale the respondent''s father Baijnath Rai, alleging that he had purchased the property at an execution sale held after the sale of March 9th, 1914, deposited the amount due to Umdan Bibi. The Munsif thereupon set aside the sale, purporting to act u/s 174 of the Bengal Tenancy Act. The appellant objected but his objection was overruled. He then brought the present suit for a declaration that Baijnath had no right to deposit the money and had acquired no title to the property. The Munsif gave him a decree which was affirmed by the District Judge. On second appeal a learned Judge of this Court dismissed the suit, holding that it was not maintainable. The learned Judge referred to the decision in Kabilaso Koer v. Raghu Nath Sakan Singh 18 C. 481 : 9 Ind. Dec. (N.S.) 321. That was a case in which a judgment-debtor sued to set aside a sale. Her suit was barred by; Section 244 of the CPC notwithstanding the fact that the auction-purchaser was interested in the matter and was a party to the case see Prosunno Kumar Sanyal v. Kali Das Sanyal 19 C. 683 : 19 I.A. 166 : 6 S. P.C.J. 209 : 9 Ind. Dec 848.

Section 174 of the Bengal Tenancy Act corresponds to Section 310A of the Code of Civil Procedure, 1882 (Order XXI, Rule 89 of the present Code). Under the Code of 1882 it was well settled that the auction-purchaser was entitled to sue to set aside an order u/s 311 setting aside or refusing to confirm a sale see Azim-ud-din v. Baldeo 3 A. 554 : 1881) A.W.N.34 : 2 Ind. Dec. (N.S.) 318; Mathuradas v. Panahlal 19 B. 216 : 10 Ind. Dec. 147; Shiam Behari Lal v. Rup Kishore 20 A. 379 : (1898) A.W.N.81 : 9 Ind. Dec. (N.S.) 603 and the notes of Messrs. Woodroffe and Amir Ali to Order XXI Rule 92. It follows that a similar suit could have been maintained in respect of an order passed u/s 310A. There does not appear to be any reported Calcutta case directly in point. This may be due to the fact that erroneous orders of the kind now in question were generally taken up to the High Court on the revision side. But the reasoning on which the Allahabad and Bombay cases rest was accepted by the Calcutta High Court in many cases. Under the Code of 1882 the only ground for negativing the right to bring a suit to confirm or set aside an execution sale, after an order had been passed on the subject by the Court executing the decree, was that the suit was barred by Section 244 see Prosunno Kumar Sanyal v. Kali Das Sanyal 19 C. 683 : 19 I.A. 166 : 6 S P.C.J. 209 : 9 Ind. Dec. 848. A suit like the one now before us could not have been held to be barred by Section 244. Before 1908, so far as I know, no Court ever doubted that a suit of this kind would lie. It is within my knowledge that many such suits were brought.

The Code of 1908 allows an appeal by a person aggrieved by an order under Order XXI, Rule 92, and bars a suit like the one now before us. [See Order XXI, Rule 92(3), which prohibits a suit by a person against whom an order is passed under Order XXI, Rules 89, 90 or 91]. But no such provision has been inserted in the Bengal Tenancy Act and it is impossible to hold that an order passed u/s 174 of that Act is an order passed under Order XXI, Rule 89, and attracts the operation of Order XXI, Rule 92(3).

The omission is, I thick, unfortunate but with that we are not concerned.

I would allow this appeal and dismiss the appeal to this Court with costs of both hearings.

Roe, J.

I agree. I have sought in vain for any bar to the suit. u/s 9, Civil Procedure Code, the Courts had jurisdiction to try the suit and on the merits were required to give a decree.