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Calcutta High Court
Ali Miah vs Ramjan Khan And Anr. on 3 December, 1908
Equivalent citations: 4 Ind Cas 474
Bench: Sharfuddin, Coxe


JUDGMENT

1. In this case a holding was sold in execution of a decree for arrears of rent. One Korla Mia, who had previously purchased the tenants interest deposited the purchase-money under Section 310A of the Civil Procedure Code. The Munsif accepted the deposit and set aside the sale. The auction- purchaser has obtained a Rule from this Court to show cause why this order should not be set aside as made without jurisdiction.

2. The first question that arises for decision is whether Section 310A applies to sales of holdings under the Tenancy Act at all. It was held in Janardhan Ganguli v. Kali Kristo Thakur 23 C. 393 that the section does apply. Reference may also be made to Benodini Dassi v. Peary Mohan Haldar 8 C.W.N. 55; Kunja Behari Mondal v. Sambhu Chandra Roy 8 C.W.N. 232 and Omar Ali Majhi v. Basirudeen Ahmed 12 C.W.N. lxiv; 7 C.L.J. 282. We find also that the Legislative Council of Eastern Bengal and Assam have not thought fit to follow the example of the Bengal Legislature in amending Section 170, so as specifically to exclude Section 310A from applying to holdings attached in execution of decrees for rent: and it is clear that that Legislature advisedly intended that Section 310A should apply to sales under the Act. On the other hand in Asiruddi Mandal v. Mokhadamoyee Dassi 12 C.W.N. 434; 35 C. 543 it was held that the section could not apply, because it was not a part of the Civil Procedure Code when the Tenancy Act was passed in 1885, and could not, therefore, have been made applicable by the second Clause of Section 143. The argument seems to us incontrovertible. If a section of the Civil Procedure Code had been repealed, subsequent to its application to proceedings under the Tenancy Act, the section would certainly have continued to operate in such proceedings. We may refer to Maxwell’s Interpretation of Statutes, page 514 (2nd Edition) and the cases there cited. It seems to follow that if a new section is added to the Code after its application to proceedings under the Tenancy Act, that section will not have any application to such proceedings.

3. In this conflict of authority we should have thought ourselves bound to refer the question to a Full Bench, were it not that the point appears to us to be concluded by the Full Bench decision in Paresh Nath Singha v. Nobogopal Chattopadhya 5 C.W.N. 821; 29 C. 1. We are bound by that decision and must in accordance with it hold that persons are entitled to apply under Section 310A of the Civil Procedure Code to set aside sales under the Tenancy Act.

4. Secondly, it is urged that the depositor being a private purchaser of an occupancy holding without the landlord’s consent is not entitled to come in under Section 310A. The point in another form is at present under the consideration of a Full Bench, but having regard to the present current of authority we are not prepared in revision to set aside the Munsif’s order at the instance of the auction, purchaser, who is not the landlord of the holding.

5. Accordingly the Rule will be discharged with costs. We assess the hearing fee at 2 gold mohurs.


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