Suraj Narain Misser and Others vs Hardwar Singh and Others

Kulwant Sahay, J.—The petitioners obtained a rent decree and in execution, thereof proceeded to well the holding. The sale took place on the 25th of October, 1922, and the petitioners themselves were the purchasers. On the 30th October 1922 an application was made by the opposite party for setting aside the sale under the provisions of Order 21, Rule 90 of the Code of Civil Procedure. The opposite party are the purchasers of a portion of the holding from the original tenant by a private sale.

The Munsiff before whom the application was made dismissed the application for setting aside the sale. On appeal the learned District Judge has allowed the application and has set aside the sale. Against this order of the learned District Judge on appeal the petitioners have come up in revision to this Court.

The first point taken by the learned Vakil for the petitioners is that the application under Order 21, Rule 90 of the CPC was not maintainable at the instance of the opposite-party in as much as they were the purchasers of a portion of a non-transferable occupancy holding and, therefore, they were not persons whose interests were affected by the sale. This question does not appear to have been raised either in the trial Court or in the Court of appeal below. There is no allegation in the application for revision filed in this Court to the effect that the holding was a non-transferable occupancy holding and it is too late for the petitioners to raise this point for the first time in revision in this Court. It raises questions not only of law, but also of fact and, as the question was not raised in the court below, it can not be entertained for the first time in the present application in revision. Reliance had been placed by the learned Vakil for the petitioners on the decision of the Special Bench in Mahadeo Lal v. Langat Singh (1917) 2 Pat. L.J. 457, but that was a case which depended on the construction of Section 170, Clause (3) of the Bengal Tenancy Act and not on the construction of the provisions of Order 21, Rule 90 of the Civil Procedure Code. The learned Chief Justice in the course of his judgment in that case at page 459 observed as follows:

Both sides have in this case admitted the correctness of the propositions laid down by the Pull Bench in Dayamoyi v. Ananda Mohan Roy Chowdhry (1914) 42 Cal. 172 and it may be conceded that as held in that case a purchaser without the landlord''s consent of a part of a non-transferable occupancy holding has an interest in the holding sufficient to entitle him to apply after an execution sale, as a representative of the raiyat, to have the sale of the holding set aside on the ground of fraud, but the question which we have to decide is whether such a person has an interest in the holding ''voidable on the sale'' within the meaning of Section 170 of the Act.

The decision of the Special Bench, therefore cannot be of any help to the petitioners in the present case.

The next point taken is that it being found by the learned District Judge in concurrence with the trial Court that the sale proclamation was duly served and that the processes were not suppressed the mere finding that the price fetched at the sale was inadequate was not sufficient in law to entitle the learned Judge to set aside the sale. Now the learned Judge has found that there was collusion between the judgment-debtors and the decree-holders, that there had been material irregularity in the sale proclamation, that the value of the property as stated in the sale proclamation was grossly inadequate, and that the price fetched at the sale was also inadequate. On those findings the learned District Judge was perfectly competent to set aside the sale. There is no question of want of jurisdiction involved in the present case; and this application must be dismissed with costs. Hearing fee two gold mohurs.