Sheikh Abdul Rahim vs Gujeshar Mahto and Others and Jadu Thakur and Others

Jwala Prasad, J.—This is an appeal against the order of the District Judge of Mozaffarpur, dated the 28th of May 1918, confirming the order of the Munsif, dated the 28th of July 1917.

The plaintiff and the defendant 4th party held jointly a holding, which originally belonged to the former but by transfer a portion thereof came into the possession of the latter. The defendant 2nd party is the landlord of the holding and obtained a rent decree against the plaintiff and the defendant 4th party and in execution against the defendant 4th party only brought the entire holding to sale. Defendant 1st party, who is the appellant before us, purchased that holding at the auction-sale, The plaintiff thereupon brought a regular suit with the main object of having the sale set aside. The suit was decreed but on appeal to the District Judge it was held that the suit was barred by the provisions of Section 47, Civil Procedure Code, and the case was remanded to the trying Court with a direction to treat the plaint as an application u/s 47, Civil Procedure Code, and to dispose of it. The parties agreed to this course. On remand, the Munsif set aside the sale, holding that the decree-holder bad illegally omitted the plaintiff from the list of the judgment debtors in the execution proceeding, and that he had not served any of the processes required under the law for the attachment and the sale of property in execution of the decree. He also held that the processes were suppressed by the decree-holder in collusion with the Court peon.

Defendant No. 1 appealed to the District Judge. The aforesaid findings of fast were not challenged, but the mere contention in appeal was that the respondent had no right to make an application u/s 47 of the Code, and that his remedy was to apply for setting aside the sale either u/s 174 of the Bengal Tenancy Act, or Order XXI, Rule 90, Civil Procedure Code. The learned District Judge overruled this contention and dismissed the appeal. The contention has been repeated before us in this second appeal The only question, therefore, before us for decision is whether the application of the respondent comes u/s 47 or not.

The ground urged in support of the contention is that the respondent was not a party to the execution proceedings and, as Section 47 relates only to execution proceedings, he has no right to apply u/s 47. The learned Vakil for the appellant has obviously overlooked the provisions of Section 47, which do not require that a person making an application under that section should be a party to the execution proceedings. All that the section requires is that he must be "a party to the suit in which the decree was passed" The plaintiff respondent was impleaded as defendant along with defendants 4th party in the rent suit in which the joint decree in question was passed. There is, therefore, no force in this contention, which is overruled.

The next ground urged has been that Section 174 of the Bengal Tenancy Act and Order XXI, Rule 90, of the CPC bar the present application of the respondent from being entertained u/s 47, Civil Procedure Code. There does not appear to be much substance in this contention also. Both the aforesaid provisions of law have limited scope and application and afford speedy remedy to the judgment-debtor or any person affected by the sale to have the sale set aside either upon deposit made within a certain period from the date of the sale or on showing that there had been material "irregularity" or fraud in publishing or conducting the sale" and consequent substantial injury. The application in this case is certainly of a more far-reaching character and although some of the grounds upon which the sale is impugned are covered by the aforesaid provisions in Section 174 and Order XXI, Rule 90, still there are other grounds which clearly raise questions as to the execution of the decree and which are beyond the scope of the aforesaid sections. One of the principal grounds is that though the plaintiff-respondent was a judgment-debtor and was interested in the holding, he was not made a party in the execution proceedings and the entire holding including his interest could not be sold in the execution of the decree against him and the defendant 4th party. Another important objection to the sale was that no notice was served on the plaintiff-respondent as required by law, particularly, notice under Order XXI, rule 66, CPC These latter objections'' cannot possibly come under Order XXI, Rule 90, Civil Procedure Code, or Section 174 of the Bengal Tenancy Act. I, therefore, agree with the view taken by the Courts below that the application was properly dealt with u/s 47.

It has been also urged that the question raised by the application of the respondent is not between the parties to the suit, inasmuch as the appellant is an auction-purchaser'' and he was pot a party to the suit. The application does not at all raise any question subsequent to the sale but the objections of the respondent as to the sale relate to the proceedings adopted by the decree-holder regarding the execution of the decree and the manner in which the property was brought to sale. The real dispute, therefore, is between the decree-holder and the respondent, both of whom were parties to the suit; and as the sale was being impugned, the auction-purchaser who purchased the property at the sale was also made a party to the present proceedings. This contention also must, therefore, be overruled. The result is that the appeal is dismissed with costs.

Adami, J.

I agree.