Jainarain Singh vs Rameshwar Singh Bahadur and Others

Wort, J.—This application raises a somewhat important question on a true construction of Section 153, Ben. Ten Act. The applicant succeeded in an application before the Munsiif under Order 21, Rule 90, obtaining an order to set aside a certain auction sale on the ground of fraud. There is no doubt that the question of fraud was the real issue in the application, and the learned Munsiffi in his somewhat elaborate judgment clearly came to the decision at the end of his judgment that the

attachment, sale proclamation ware all served fraudulently on account of collusion between three parsons, namely, Raj Amlas, the Judgment-debtor and the peon.

From that order the opposite party appealed to the learnel Subordinate Judge and succeeded. The question which comas before me is whether in the circumstances of the case there was a right of appeal to the Subordinate Judge. Mr. Pugh on behalf of the applicant urges that there was no right of appeal and, therefore, the learned Subordinate Judge had no jurisdiction to make his order, dated 24th January 1928. The facts need not be stated. As I have already mentioned the only question for decision is the true construction of Section 153, Ban. Ten. Act. That section provides that no appeal shall

lie from any decree or order passed, whether in the first instance or on appeal, in any suit instituted by a landlord for the recovery of rent

and than sets out two circumstances in sub-paras. (a) and (b), and incidentally there is no doubt that this case comes within those paragraphs, at any rate, so far as the amount is concerned. The suit which gave rise to the auction sale was a rent suit and in execution of that decree the sale took place and this is the sale which was sought to be set aside by the applicant.

On a plain reading of the section, apart from the explanation, one would suppose that the section applies only to decrees or orders passed in rant suits and so it appears to have been held before the legislature added to the section the explanation which comes at the end. The explanation is:

A question as to the regularity of the proceedings in publishing or conducting a sale in executton of a decree for arrears of rent is not a question relating to title to land or to some interest in land as between parties having conflicting claims thereto

The explanation was necessary by reason of the proviso to the earlier part of the section for an appeal was precluded unless in either case the decree or order has decided a question relating to land. Quite obviously from the explanation the section must be held to have contemplated not merely decrees passed in rent suits but also applications similar to those which I have before me today in this case. On the plain construction of the section, therefore, it is clear that there are certain classes of cases which are precluded from the provision that no appeal lies and that class of case is that which raises a question relating to the title to land.

But the explanation is a further restriction on the main provisions of the section. It provides that a question as to the regularity of the proceedings in publishing or conducting a sale is not a question relating to title to land. The appeal, therefore, which is given by inference by the section where the matter relates to title to land is cut down by the explanation.

The point, therefore, for my determination is whether (although in one sense of the word title to land was an issue) the case was one which relates to the irregularity in publishing or conducting a sale in execution of a decree. On a plain construction of the section I come to the conclusion that it was not, as it related to some other matter. The legislature wisely or unwisely has specifically confined the exception to the regularity of the proceedings in publishing or conducting a sale. Now, what is obviously urged in this case is that there has been no dispute either before the Munsiff or before the learned Subordinate Judge as to the ''regularity'' in conducting the sale, but ''fraud'' in relation thereto. The case of Nobin Chandra v. Bepin Chandra 19 C.W.N. 953 would appear to be a sufficient authority for the construction which I have placed upon the section. It is true that so far as a minor point is concerned, the two learned Judges, who took part in that decision seem to be of different opinions, but on the main decision of the case it is quite clear that they came to the conclusion that where fraud was a basis of the case, the case was not brought within the exception provided for by the explanation.

A further case has been brought to my attention, namely, the case of Maharaj Bahadur Singh Vs. Karani Mai, where although this question was debated it was specifically left open. Now, in the circumstances of the case it is for me to determine whether I should follow the decision in Nobin Chandra v. Bepin Chandra 19 C.W.N. 953 or follow the case of Maharaj Bahadur Singh Vs. Karani Mai, , but the observations, which I have aheady made regarding that, prevent me from in any way being bound by that decision for the simple reason that the question has been expressly left open. In my judgment on a plain construction of this section, this case being a clear case in which ''fraud'' was alleged, it does not come within the explanation and, therefore, it is a matter which rather raised a question of title to land in which circumstance an appeal will lie. I am supported by the authority which I have quoted in Nobin Chandra v. Bepin Chandra 19 C.W.N. 953. In those circumstances, in my judgment, this application must be dismissed with costs.

The decision in the case will govern Civil Revision Not 156 of 1928. Hearing fee in the two cases will be three gold mohurs.