Kanhu Charan Ramanuj Das and Another vs Mangaraj Padhan and Another

Beevor, J.—This is an application in revision against an order of the Senior Deputy Collector, Balasore, with appellate powers bringing on record a certain man under the provisions of Section 81-B, Orissa Tenancy Act, and directing that his application to deposit money to set aside the sale be disposed of according to law. This order reverses an order of the Rent Suit Officer of Balasore dated 21st December 1944, who held that. The said person as an applicant had no right to make deposit under Order 21, Rule 89, Civil PC.

The ''material facts are as follows: In 1940 a suit was brought to recover rent and on 27th September 1940 an ex parte decree for the sum of about Rs. 12 was passed in that suit. On 14th April 1944, the entire holding was brought to sale By that time the judgment-debtor had died and his eon was brought on the record as his representative On 15th April 1944, opposite party No. 1 purchased 52 acres out of a holding in execution of a money decree against the son of the original judgment-debtor in the Court of the Munsif. On 11th May 1944 opposite party No. 1 deposited the requisite sums in the Court of the Rent Suit Officer who set aside the sale under Order 21, Rule 89, Civil P.C. His right to make that deposit was challenged.

In the application to set aside the sale it was not specified under what provision of law he was claiming to set aside the sale The Rent Suit Officer considered both Order 21, Rule 89 and Section 31-B, Orissa Tenancy Act, and held that the opposite party No. 1 had no right to make a deposit to set aside the sale On appeal the Deputy Collector with appellate powers held that opposite party No. 1 had the right to be brought on the record as judgment-debtor u/s 81-B, Orissa Tenancy Act, and passed order accordingly.

Two points have been urged on behalf of the petitioners First, that no appeal lay to the Collector who transferred (? Sic) to the Deputy Collector with appellate powers, and secondly, that Section 81-B, Orissa Tenancy Act, was not applicable to the facts of the case

Mr. P.C. Chatterji appearing for the petitioners frankly conceded that the point regarding maintainability of the appeal to the Collector was not taken in the lower Court. At present I am of the opinion that the contention that the appeal did not lay to the Collector is invalid. But as this point was not taken in the lower Court and the facts have not been fully investigated, I do not wish to give a final decision on this point. One reason for this is that even- if no appeal lies to the Collector, I have come to the conclusion that the decision of the Deputy Collector who heard the appeal was correct in law and there would be sufficient ground for interfering with the original order of the Rent Suit Officer. The crux of the question before me is whether the opposite Party N. 1 had a right under the explanation to Section 81-B, Orissa Tenancy Act, to be brought on the record to make a deposit to set aside the sale either'' under Order 21, Rule 89, Civil P.C. or Section 228, Orissa Tenancy Act.

Section 31-B, Orissa Tenancy, Act, runs as follows:

(1) Notwithstanding anything contained in this Act, any transferee, who obtained a transfer of an occupancy holding or a portion or a share thereof, before the commencement of the Orissa Tenancy (Amendment) Act 1938, shall be liable to pay the fees lawfully payable by him at the time of the transfer, within, three years from the coming into force of that Act or the date of the landlord''s knowledge of the transfer whichever is later, but he shall not be liable to ejectment on the ground that the landlord has not given consent to the transfer.

(2) The holding or a portion or a share thereof shall not be liable to be sold in satisfaction of the decree for arrears of rent without making the said transferee a party to the proceedings in execution of the decree provided that the transferee has given" notice of transfer by registered past to the landlord.

Explanation: Notwithstanding anything contained in this Act or in the CPC in the case of a transfer of a holdings or a portion or a share thereof, whether before or after the decree the transferee may be brought on record-in the proceedings in execution either in substitution of or in addition to the judgment-debtor, and such transferee shall when be added or substituted, be treated as a judgment-debtor for all purposes of the said proceedings in execution bf -the decree.

Sub-section (1) refers only to transfers, which took place before the commencement of the Orissa Tenancy Amendment Act, 1938. The words the said transferee in Sub-section (2) must refer to transferee in Sub-section (1), that is, a transferee prior to the commencement of the Amendment Act. It would be natural to expect that the explanation to that section would be confined to such transfers, but the words ''whether before or after the decree in the explanation seem to me to render such construction of the explanation itself impossible and the explanation must in my opinion be considered as referring to transfers before or after the decree, whether these transfers occurred before or after the Orissa Tenancy Amendment Act, 1988, came into for Rule In other words it is necessary to construe this explanation as if it were an independent section of the Act.

Mr. P.C. Chatterji has urged that the explanation should be read as restricted to such transfers as took place before sale in execution of the decree but I can find no justification-for reading into the explanation any such restriction; and it seems to me that the explanation must apply to all transfers which occurred before the execution is completed.

It was also urged that on the date of his application, nth May 1944, opposite party No. 1 was not really a transferee, because the auction sale in his favour in the Munsif''s Court had not then been confirmed. But u/s 65, Civil P.C., where immovable property is sold in execution of a decree and such sale has become absolute the property shall be deemed to have vested in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute The sale in favour of opposite party No. 1 was confirmed on 29th June 1944 and therefore u/s 65 the property purchased by him must be deemed to have vested in him from date of his purchase, that is 15th April 1944. Thus he must be treated as a transferee of the property on nth May 1944, the date of his application.

I therefore agree that he had a right under the explanation to Section 81-B to be brought on record as a judgment-debtor and therefore he could make the necessary deposit under Order 21, Rule 89 or Section 228, Orissa Tenancy Act. This petition therefore fails and is dismissed with cost. Hearing fee one gold mohur.