Jagdhari Rai and others vs Langat Gope and others

Jwala Prasad, J.—These second appeals arise out of sales held in execution of rent decrees obtained by the decree-holders appellants. The sales were held on the 9th of August, 1920. The case of the decree-holders is that before the sales were held their pleader told the Nazir not to hold the sales inasmuch as petitions of satisfaction of the decrees were going to be filed and the Nazir assured him that the sales would not be held. At that time, it is said, the presiding officer was in his chamber and consequently the applications were filed after he came ''out of his chamber. The Nazir was examined in this case and he stated that no doubt the pleader of the decree-holders told him not to hold the sales but at that time the sales hed already taken place.

We find in the order-sheet two orders of the 9th of August, namely, Nos. 3 and 4. In Order No 3 the Court recorded the following order:

Sale held and the property purchased by Jagdip Singh other than the decree-holder for Rs. 21. Earnest money deposited. The balance of the purchase to be deposited within 15 day Put up 26th August, 1920, for further orders.

Order No. 4 runs as follows:

Afterwards the decree-holder filed a petition certifying full satisfaction of the decretal money. Put up in the presence of the pleaders.

On the 10th August the auction purchaser filed a petition opposing petition of satisfaction filed by the decree-holders. This also was ordered to be put up in'' the presence of pleaders concerned.

On the 11th August the decree-holders filed a petition stating that the sales were held after a petition of satisfaction had been filed, and that the sales may not be accepted In view of the difference between the parties as to when the petition of satisfaction was filed by the decree-holders and as to whether there was a real bona fide petition of satisfaction, the Court took evidence on behalf of both the parties in support of their respective case.

On the 7th September, the Munsif held that the petitions of satisfaction were not bona fide and that the decrees were, as a matter of fact, not satisfied. In his view it did not matter whether the petitions of satisfaction were filed before or after the sales had taken place, inasmuch as the intimation to the Nazir not to hold the sales was not valid under Order XXI, rule 69 which requires that a sale held within the precincts of the Court house shall not be adjourned without the leave of the Court, and the Nazir who was conducting the sales had no right to adjourn the sales.

On appeal by the decree-holders the learned Subordinate Judge differed from the view of the Munsif that the petition of the decree-holders was not fit to be entertained inasmuch as the petitions of satisfaction were not bona fide. He was of opinion that it was not the business of the Court to make any enquiry as to whether the payments had actually been made to the decree-holders or not, or whether the petitions of satisfaction filed by the decree-holders were mala fide, or bogus. According to him after a petition satisfaction is filed by the decree-holder, whether bona fide or mala fide, the sale could not take place In his view he is supported by the case cited by him in Haider Mirza v. Kailash Narain Dar [1918] 5 O.L.J. 482: 31 O.C. 161: 47 I.C. 177. The learned Subordinate Judge is also supported in his view by S. 170 of the Bengal Tenancy Act though he does not expressly refer to it. This section seems to have been lost sight of by the Munsif for he does not refer to it in his judgment. Clause 2 of that section clearly provides for a decree-holder to make an application for a release of the tenure or holding on the ground that the decree has been satisfied out of Court. Upon such an application the tenure or holding shall be released from attachment provided the application is made before the tenure or holding is knocked down to the purchaser. Under that section no enquiry is needed as to whether the application is bona fide or not. The only condition laid down is that the application should have been made before the tenure or holding is knocked down to the auction-purchaser. The evidence of the Nazir was that the decree-holders'' pleader asked him not to hold the sales after the sales had taken place. The Orders Nos. 3 and 4 in the order-sheet of the Munsif referred to above clearly show that the decree-holder''s petition certifying full satisfaction of the decretal money was made after the sales were held and the property was purchased by the auction-purchaser and earnest money was deposited. In Order No. 3 the Court, therefore, had already accepted the sale. The petition filed by the decree-holders was, therefore, a little too late. None of the Courts has come to a definite finding as to whether the verbal intimation to the Nazir was made before or after the sales had actually taken place. The parties were at variance on this point. If it were held that the intimation was given to the Nazir of full satisfaction of the decrees and therefore not to hold the sales, perhaps the Nazir would not have been justified to persist in knocking down the holdings in question, for S. 170 of the Bengal Tenancy Act does not require either a written application or that an application for release of the tenure or holding, on the ground that the decree has already been satisfied out of Court, should be made to the Court and not to the Officer conducting the sale. II do not agree with the view of the Courts below that Order XXI, rule 69 had any application to the present case if in fact the intimation of satisfaction of the decree was given to the Nazir before the sales had taken place, regard being had to the fact that the presiding officer of the Court was in Chamber and it was almost physically impossible to make the application, to the Court, though, as the Munsif says, there was nothing to prevent the decree-holder''s pleader coming into his Chamber; but that would have been an unusual thing and the decree-holder''s pleader might or might not have liked to go into the Chamber. Had the matter rested there, I would have considered it to be a case of illegal sale in contravention of S. 170 Clause (2) of the Bengal Tenancy Act but it appears from the orders referred to above that the application by the decree-holder certifying full satisfaction of the decrees was made to the Court after the Court had accepted the sales. Presumably the order accepting the sales was signed when the presiding officer came out of his Chamber and sat on his Ijlas, in the absence of any proof that Order No. 3 was signed by the presiding Officer in his Chamber. In this view, the application of the decree-holders was made after the sales had taken place and the bid was accepted by the Court (not only by the Nazir), and therefore the sales cannot be set aside on account of the application made by the decree-holders for the release of the tenure or holding on the ground that the decrees were satisfied out of Court.

When the case was first argued before us there was a talk of compromise, and the Vakil on behalf of the decree-holders offered to pay 5 per cent, of the purchase money as compensation to the purchaser. The compromise, however, ultimately failed and the case had, therefore, to be heard again. Considering that the case was a hard one I was myself inclined to think that this was a fit case to be compromised. At that time my attention was not drawn to S. 170 Bengal Tenancy Act, and in fact neither the Courts below nor the learned Vakils appearing on behalf of the parties in this case drew my attention to that section. On a fuller consideration of the case, I hold that S. 170 Bengal Tenancy Act bars the application of the decree-holders to have the sales set aside. In fact, no proper application for having the sales set aside was made under Order XXI, rule 90 of the CPC on the ground of irregularity in publishing or conducting the sales. The application of the 9th of August was an application for satisfaction of the decree. The application of the 11th August was an application asking the Court not to accept the sales. Obviously, the decree-holders treated the sales as being wholly without jurisdiction.

It appears to me that second appeals in this case from the order of the Court below are incompetent. The learned Vakil on behalf of the appellants asked me to convert the appeals into applications for revision. Even if his request is acceded to, it has already been shown that there is no want of jurisdiction or any illegality or irregularity in the order of the Court below and consequently this Court will not have power to revise the order of the Court below.

The result is that the appeals are dismissed. In view of the circumstances of the case I would make no order as to costs.