JUDGMENT
Das, J.
1. This appeal arises out of a suit brought by the respondent for setting aside the sale held on 7th January 1913. It appears that a rent decree was obtained against the respondent and in execution of that rent decree the property, namely, Khasra Plots Nos. 121 to 127, were purchased by the appellant who, it will be useful to remember, is not the decree holder. Within 30 days from the date of sale, the plaintiffs against whom the rent decree was passed deposited the decretal amount with the usual penalty and talbana for notices under Section 174 of the Bengal Tenancy Act, and they asked in terms of that section that the sale may be set aside.
2. It has been found by the lower Appellate Court that the plaintiffs did deposit the decretal amount with the usual penalty. Notices, however, were not served, and as the plaintiffs took no further steps in the matter, the learned Munsif confirmed the sale. I have gone through the order-sheet of the execution case and I do not find that the learned Munsif refused the application of the plaintiffs for setting aside the sale under Section 174 of the Bengal Tenancy Act, but he does say this: ‘No steps taken by the judgment-debtor for service of notice on the auction-purchaser. The sale is, therefore, confirmed and the case is dismissed on full satisfaction.”
3. The plaintiff has accordingly brought this suit for determination of his title to Khasra Plots Nos. 121 to 127, for setting aside the sale in execution of the rent decree obtained against him and for possession of the property.
4. The lower Appellate Court was of opinion that no suit was maintainable for obtaining the reliefs which the plaintiffs did claim in their suit, but it thought that the suit could be treated as an application under Section 151 of the Civil Procedure Code and complete relief could be given to the plaintiffs under Section 151 of the Code. This is erroneous. An application can only be made in a pending suit, and if the lower Appellate Court was of opinion that the suit did not lie, it is clear that an application could not be made in such a suit. But I am of opinion that a suit is maintainable and that the plaintiffs are entitled to the reliefs claimed by them.
5. The question which has been argued before me at great length is this: Were the auction-purchasers entitled to any notice of the deposit made under Section 174 of the Bengal Tenancy Act? If they were not entitled to such a notice, then the Court had no option bat to set aside the sale and further the Court had no power at all to confirm the sale, seeing that all the conditions laid down by Section 174 of the Bengal Tenancy Act had been satisfied. The learned Vakil on behalf of the appellant urges that Section 174 of the Bengal Tenancy Act must be read along with Order XXI, Rule 92, of the Code of Civil Procedure and when so read, it is clear that an order cannot be made under Section 174 of the Bengal Tenancy Act unless notice of the application has been given to all persons affected by such an application.
6. The question is one of importance and I desire to deal with this matter as fully as I am able to do.
7. Section 174 of the Bengal Tenancy Act provides that “Where a tenure or holding is sold for an arrear of rent due thereon, then, at any time within thirty days from the date of sale, the judgment-debtor may apply to have the sale set aside, on his depositing in Court, for payment to the decree-holder, the amount recoverable under the decree with costs, and, for payment to the purchaser, a sum equal to five per centum of the purchase-money,” and then the section proceeds to say that “If such deposit is made within the thirty days, the Court shall pass an order setting aside the sale, and the provisions of Section 315 (Order XXI, Rule 9i) of the Code of Civil Procedure shall apply in the case of a sale go set aside.”
8. It will be noticed that there is no provision at all in Section 174 for any notice to be served on the persons affected by an application under Section 174 of the Bengal Tenancy Act’, and I am not prepared to hold in the face of the clear and precise language employed in Section 174 of the Bengal Tenancy Act that such a notice is necessary. The learned Vakil on behalf of the appellant has referred me first of all to two oases, Janardhan Ganguli v. Kali Kristo Thakur 23 C. 393 : 12 Ind. Dec. (N.S.) 261 and Bungshidhar Haldar v. Kedar Nath Mondal 1 C.W.N. 114. The case of Janardhan Ganguli v. Kali Kristo Thakur 23 C. 393 : 12 Ind. Dec. (N.S.) 261 was a case where the application to set aside the sale was made expressly under Section 310A of the Code of Civil Procedure and was made by a person not the judgment debtor, and the whole controversy in that case was whether an application under Section 310A at all lay, because it was contended that in a case between landlord and tenant the only application that could be made to set aside the sale would be under Section 174 of the Bengal Tenancy Act and as the applicant was not the judgment debtor, therefore there was no remedy at all. The Court after a full discussion on the subject came to the conclusion that there was nothing to indicate that Section 310A was intended not to apply to sales in execution of rent decrees. I do not read this case as laying down that the proviso laid down in Order XXI, Rule 92, of the Code of Civil Procedure must be read as a part of Section 174 of the Bengal Tenancy Act.
9. The next case relied upon is the case of Bungshidhar Haldar v. Kedar Nath Mondal 1 C.W.N. 114, In that case one N obtained a decree against B for arrears of rent. On the 13th February 1895 the holding was sold in execution of the rent decree and was purchased by K. On the 13th March 1895, one B, who, it will be noticed, was not the judgment-debtor, applied to have the sale set aside under Section 310A, alleging that he had acquired an interest in the property sold many years before the rent decree. No notice was served on the persons affected by that application. It was held that the provisions of Section 310A may be applicable to sales of tenures held under the provisions of the Tenancy Act and that persons other than the judgment-debtor, whose immoveable property has been sold, may apply under that section to have the sale set aside on complying with the conditions prescribed by the section. This case is no authority for the proposition that if the application was made under Section 174 of the Bengal Tenancy Act it would be necessary to serve notice on persons affected by such an application.
10. In my opinion the cases relied upon by the learned Vakil on behalf of the appellant do not establish that the proviso to Rule 92 applies to Section 174 of the Bengal Tenancy Act and I am not prepared to hold that the proviso does apply. But it has been argued by the learned Vakil that at any rate Section 143 of the Bengal Tenancy Act provides in express terms that subject to any rules made by the Court and subject also to the other provisions of the Bengal Tenancy Act, the Code of Civil Procedure shall apply to all such suits.
11. The argument is that if there is nothing in the Bengal Tenancy Act, which is the incorporating Act, to show-that any particular provision of the Civil Procedure Code does not apply to the Bengal Tenancy Act, then that particular provision of the Civil Procedure Code must apply to the Bengal Tenancy Act by incorporation. I quite agree that if the Bengal Tenancy Act does not lay down any procedure for any particular matter, and if there is a complete procedure for that matter in the Civil Procedure Code, then, unless there is something to the contrary in the Bengal Tenancy Act, the procedure laid down in the Civil Procedure Code must apply to that particular matter. But there is neither principle nor authority for the proposition that where there is a procedure for that particular’ matter in the Bengal Tenancy Act itself, still it is necessary to go to the Code because the Code requires something more to be done than is necessary under the Tenancy Act. “If the incorporating Act”, said Lord Westbury in St. Sepulchre (Vicar & Church Wardens of), In Re: (1864) 33 L.J. Ch. 372 : 4 De G.J. & S. 232 : 9 L.T. 819 : 3 N.R. 594 : 10 Jur. (N.S.) 298 : 12 W.R. 409 : 46 E.R. 146 : R.R. 288, “gives itself a complete rule on the subject the expression of that rule will undoubtedly amount to an exception of the subject-matter of the general rule contained in the incorporated Act.” In this case, Section 174 of the Bengal Tenancy Act contains a complete rule on the subject, and I am of opinion that the expression of that rule undoubtedly amounts to an exception of the subject-matter of the general rule contained in Order XXI, Rule 92, of the Code.
12. In my opinion the proviso to Order XXI, Rule 92, does not apply to Section 174 of the Bengal Tenancy Act, and that, there-fore, under Sub-clause (2) of Section 174 it was obligatory on the Court to set aside the sale as soon as the deposit was made within the thirty days. In support of the procedure laid down in Sub-clause (2) of Section 174 of the Bengal Tenancy Act it may be urged that the question is between landlord and tenant, and if there is no question at all that the deposit has been made within thirty days, there is no reason why any notice should be served on any person. The Court must of course, be satisfied that the conditions laid down in Section 174 have been complied with. It is not a question of law but is a question of arithmetic, that is to say, purely a question of calculation whether the amount recoverable under the decree, with costs, and, for payment to the purchaser, a sum equal to five per centem of the purchase-money, has been deposited by the judgment-debtor. In my opinion the Court should have set aside the sale as soon as the deposit was made by the judgment-debtor within thirty days from the date of sale.
13. The nest question is, what is the remedy of the judgment-debtor now. The learned Vakil on behalf of the appellant argues first of all that if Rule 92 applies, then, of course, the Court has no jurisdiction at all to set aside the sale, because Rule 92 expressly provides that “No suit to set aside an order made under this rule shall he brought by any person against whom such order is made.” I have held that Rule 92 is not applicable and therefore, in my opinion, Sub-section (3) of Rule 92 does not apply at all. But it is further contended by the learned Vakil that even if Rule 92 does not apply, the order passed by the Court in the application under Section 174 was an order under Section 47 of the Code of Civil Procedure, and that, therefore, the only remedy available to the judgment debtor was to appeal from that order and to come to this Court in second appeal, and he relies upon two cases as Mahomed Akbar Jamon Khan v. Sukhdeo Panday 10 Ind. Cas. 51 : 13 C.L.J. 467 and Raghubar Dayal Sukul v. Jadu Nandan Missir 13 Ind. Cas. 365 : 16 C.W.N. 736 : 15 C.L.J. Both these cases were between the decree-holder and the judgment-debtor. The auction-purchasers in both these cases were the decree-holders and it was expressly laid down in the case reported as Mahomed Akbar Jawan Khan v. Sukhdeo Panday 10 Ind. Cas. 51 : 13 C.L.J. 467 that the question being between the decree-holder and the judgment-debtor, the application came expressly within Section 47 of the Code of Civil Procedure and, therefore, the order was appealable. The learned Judges were very careful to say as follows: “It 89. is not necessary to lay down an inflexible rule that every order made upon an application under Rule 89 falls within the scope of Section 47. The true nature of the order must be examined, and the character of the parties affected thereby ascertained, before it can be determined whether the order does or does not fall within the scope of Section 47.” In my view the opinion expressed by the learned Judges in the case reported as Mahomed Akbar Jaman Khan v. Sukhdeo Panday 10 Ind. Cas. 51 : 13 C.L.J. 467 is destructive of the argument advanced by the learned Vakil. The case before me is not a case between the decree-holder and the judgment debtor and, therefore, certainly so far as the oases reported as Mahomed Akbar Jaman Khan v. Sukhdeo Panday 10 Ind. Cas. 51 : 13 C.L.J. 467 and Raghubar Dayal Sukul v. Jada Nandan Missir 13 Ind. Cas. 365 : 16 C.W.N. 736 : 15 C.L.J 89 are concerned, it was not a matter within Section 47 at all and therefore there could not be an appeal from that order passed under Section 174 of the Bengal Tenancy Act.
14. It is next urged by the learned Vakil that if Rule 92 and Section 47 do not apply, then the only other remedy available to the judgment-debtor is to proceed by way of review of the order passed by the lower Appellate Court. In my opinion there is no substance at all in this argument. I am of opinion that there being an infringement of the right of the judgment-debtor, the judgment-debtor was entitled to maintain a suit and that the Courts below had jurisdiction to grant complete relief to the plaintiff in such a suit. They have given complete relief to the plaintiff, although they were of opinion that such a suit did not lie. In my opinion the view taken by the Courts below that relief could be given only under Section 151 of the Code of Civil Procedure is erroneous. The Court had power to give complete relief in the suit itself. As the relief has. been granted, there is nothing further to be said.
15. I would, therefore, dismiss this appeal with costs.