Kesho Prasad Singh vs Madho Prasad Singh

Saunders, J.—The facts of the case out of which this appeal has arisen are these: The Maharaja of Dumraon, who is the appellant, obtained a decree in a rent suit brought against two persons who had formerly been tenants of the holding and also against the respondents who had purchased the holding in the year 1926, corresponding to 1333-F, at a Court sale held in execution of a previous rent decree. The appellant''s suit Was for the years 1331 to 1333-F and the decree he obtained was for a total sum of Rs. 551 out of which the original raiyats were liable for Rs. 413 and the respondent for the balance, those sums being the rents for the periods during which they were respectively tenants of the holding.

It was executed as a rent decree for the whole amount and the holding was put up for sale and bought by the appellant. Subsequently the respondent made an application under Order 21, Rule 90, Civil P.C., to have the sale set aside on the ground of material irregularities in consequence of which it was alleged that the respondent had sustained substantial injury. This application was dismissed by the execution Court and an appeal against the decision of that Court to the District Judge proved unsuccessful. An application in revision was then made to the High Court and was allowed, the case being remanded to the executing Court with a direction to consider the application as having been made u/s 47, Civil P.C. It was again dismissed by the execution Court, but allowed on appeal by the District Judge.

The present appeal is against the latter decision. It is contended on behalf of the appellant that the execution of the decree by sale of the respondent''s holding for realization of a larger amount than the respondent was liable to pay Was only an irregularity and as the holding was sold for the amount which the respondent had himself paid for it he sustained no loss. The question however is whether the sale was at all valid. The decree in respect of the larger sum due from the previous tenants was not a decree for rent that could have been lawfully executed according to the provisions of the Bengal Tenancy Act by sale of the holding.

As there was a single decree for both sums it was only capable of being executed for the whole amount as a money decree. The respondent''s grievance is that he had no information of the sale, but if the decree had been executed as a money decree he would have received the notices that would have been issued under Order 21, Rules 54 and 66. The result of the adoption of an illegal procedure has been the sale of a valuable holding which he could have avoided by depositing the amount of the rent which he was liable to pay and which he has always been and still is willing to pay.

Mr. Mullick appearing on behalf of the appellant relies on the case of Saiyed Muhammad Jawad Husain Vs. Maharaj Kumar Gopal Saran Narain Singh, in which it was held that the inclusion in the sale proclamation of a sum which the raiyat was not liable to pay was only an irregularity. The circumstances of that case however were different. There the decree was for the sum for which the raiyat was liable and it was only in the sale proclamation that it was stated that the holding was subject to an additional charge in respect of arrears of rent which had subsequently accrued due. In the present case the decree itself included a sum of money which the respondent was not liable to pay and the holding was sold for recovery of that debt, as well as for the rent due from him.

In my opinion therefore the decision of the learned District Judge is correct and I would dismiss the appeal with costs throughout.

Courtney-Terrell, C.J.

I agree.