Posted On by &filed under Calcutta High Court, High Court.

Calcutta High Court
Tamirannessa Bibi And … vs Mt. Kachhiman Bewa, Widow Of … on 30 March, 1927
Equivalent citations: AIR 1928 Cal 202
Author: Mukerji


Mukerji, J.

1. This appeal arises out of certain proceedings taken at the instance, of some of the judgment-debtors to set aside a rent sale. The Subordinate Judge refused to set aside the sale. The District Judge, on appeal, set it aside. The auction-purchasers have preferred this appeal.

2. The application to set aside the sale was under Order 21, Rule 90, Civil P.C., as, well as under Section 173, Clause (3), Ben. Ten. Act. Under Order 21, Rule 90, Civil P.C., it was alleged that the sale processes were not duly served, and that there was material irregularity in publishing and conducting the sale and that substantial injury in the shape of gross inadequacy of price resulted there from. As resting on Section 173, Clause (3), Ben. Ten. Act, it was alleged that one of the judgment-debtors Tahed Mahmud Mandal, in collusion with, the decree-holders, managed to purchase the properties in the benami of his daughters.

3. The sale was held on 5th October 1923. The present application was originally filed on the date the Courts reopened after the Dusserah vacation and so within time. When so filed the auction-purchasers were not made parties therein. On 12th January 1924 the auction-purchasers were added as parties.

4. The Subordinate Judge held that the application must be treated as having, been filed beyond time. He held that the sale processes were not proved to have been served, but that there was no reliable evidence to prove that the property was undersold. He held further that the evidence fell far short of proving that the purchase was made by Tahar Mahmud in the benami of his daughters, though, there were reasons to suspect that it was the case of a benami purchase.

5. The District Judge, on appeal, reversed the decision of the Subordinate Judge by an order which is not very remarkable, for its lucidity. He found that Taher Mahmud had made the purchase in the names of his daughters. He held that, there was material irregularity and that the price fetched was inadequate. The question of limitation he appears to have left undecided. He expressed himself Somewhat loosely on this question, confusing an appeal with an application under Order 21, Rule 90, Civil P.C. in these words:

As regards the appeal under Order 21, Rule 90, the auction-purchasers were not made parties till after the 30 days’ time allowed by the Limitation Act. The petitioners themselves alleged that they were necessary parties and it is difficult, therefore, to accept this contention that Order 21, Rule 90, merely demands that the auction-purchasers should have notice before the orders are passed, without making them parties, but it appears to be a perfectly possible interpretation of Order 21, Rule 92. If correct the appeal is not time barred.

6. The respondents have urged that no second appeal lies in this matter. The appellants seek to justify the appeal firstly on the ground that fraud was alleged by the judgment-debtors in their application for setting aside the sale and that therefore, the question that was decided by the Subordinate Judge and the District Judge fell within Section 47 of the Code. This justification is not possible as, though a general allegation of fraud was made in the petition, the evidence that was adduced and the order that the Subordinate Judge passed dealt only with fraud in publishing or conducting the sale within the meaning of Order 21, Rule 90, Civil P.C., for which only one appeal is allowed by the law. It is nextly urged on behalf of the appellants that the question raised under Section 173. Clause (3), Ben. Ten. Act, involves a question under Section 47 of the Code and, that therefore, a second appeal is competent.

7. The authorities bearing upon this question are not quite uniform. It should be observed at the outest that no appeal is allowed against an order under Section 173, Clause (3), ‘Ben. Ten. Act, by any provision of the Act itself and this section is not included in the list of orders made appealable as such by the Civil Procedure Code. The only way in which an order under Section 173, Clause (3), Ben. Ten. Act, may be regarded as an appealable one is by, treating it as one made under Section 47, Civil P.C., and thus satisiying the definition of a “decree” under that Code and being thus appealable as such. Mookerjee, J., discussed this question very fully in the case of Joytara v. Fran Krishna Seal [1911] 13 C.L.J. 257, and observed thus:

Our attention was invited to a number of judicial decisions which are perhaps not easy to reconcile. A detailed examination of these cases, is each unnecessary, as, in our opinion, an inflexible rule cannot be formulated that an order under Section 173 is or is not appealable as a decree. The test to be applied in the circumstances of each case is what is the true nature of the question raised, and who are the parties between whom it arises. The answer must depend, largely upon the position of the applicant and. the title he claims. We may observe, however, that there are expressions used in some of the oases in the books which may be open to criticizm.

8. The tests which the learned Judge laid down in that case were two, viz: (1) whether the question raised in the application under Section 173 is one between the’ parties to the suit in which the decree was passed or their representatives; and (2) whether the question relates to the execution of the decree. The second test is obviously satisfied, as, if the objection prevails the same must be reversed and the decree-holder must proceed to execute the decree again for its satisfaction. The first test is also satisfied because, if the question arises between the parties to the suit or their representatives and relates to the execution, discharge or satisfaction of the decree within the meaning, of Section 47 of the Code, it does not cease to be a question within that section merely because the auction-purchaser, who was not a party to the suit, is a party to these proceedings. Judged by these two tests alone, the order appealed from would fall within Section 47 of the Code and the appeal before us would be competent; were the question res integra, I should have felt great difficulty in holding that the appeal before us is not maintainable.

9. But the authorities, which I have already said are not uniform, that have clustered round this point, have laid down certain restrictions in the matter of appeals that may be preferred from an order passed under Section 173, Clause (3), Ben. Ten. Act. The cases of Roghu Singh v. Misri Singh [1894] 21 Cal. 825, Chandmonee v. Samtomonee [1897] 24 Cal. 707, Hara Bandhu v. Harish Chandra [1899] 3 C.W.N. 184, Hira Lal v. Chundra Kanta [1899] 26 Cal. 539, Amir Rai v. Basde Siagh [1907] 5 C.L.J. 207, Sriram Chandra Singh v. Guru Das Kundu 3 C.W.N. 104 (notes), and Mohima Chandra v. Jogendra Kumar 3 C.W.N. 14 (notes), have been discussed in in the judgment of Mookerjee, J., in Joytara v. Pran Krishna Seal [1911] 13 C.L.J. 257. Of these the more important ones and bearing directly upon the case before us are Ghandmonee v. Santamonee [1899] 3 C.W.N. 184, Sriram Chunder Singh v. Guru Das Kundu 3 C.W.N. 104 (notes), Mahima Chandra v. Jogendra Kumar 3 C.W.N. 14 (notes), and Hira Lal v. Chandra Kanta [1899] 26 Cal. 539. In the first of these cases the application was made by one of the judgment-debtors and the heirs of a deceased judgment-debtor on the allegation that a third judgment-debtor had purchased the property in the name of his wife; it was held that from an order setting aside the sale under Section 173, Beng. Ten. Act, no appeal lay at the instance of the auction-purchaser. In the second case the application was by the judgment-debtors and the appeal also was by them; it was held that the appeal lay on behalf, of the judgment-debtors, though it would not lie on behalf of a third party. In the third case, the application was by a judgment-debtor and it was held that when there was an order under Section 173, Beng. Ten. Act, an appeal would not lie at the instance, of the auction-purcaser. In the fourth case it was pointed out that the question of a right to a second appeal does not turn upon who may happen to be the appellant, but upon whether or not the case is one within Section 244 of the Code. This last-mentioned principle has evidently been ignored so far as the present question is concerned in the first three cases. There are other cases of this Court in which an appeal at the instance of the auction-purchaser has been held to be incompetent e.g., Durlav Pradhania v. Mahomed Mainuddi Bepari [1909] 13 C.W.N. 100 (notes) and Jadav Chandra v. Joy Gopal [1913] 19 C.L.J. 81, in the latter of which cases Coxe, J. on a review of the authorities said that the matter is no longer res integra, but the point must now be regarded as settled.

10. Whatever may be my own opinion on the propriety or correctness of the proposition that no appeal would lie at the instance of the auction-purchasers I feel bound to follow the long series of decisions to which I have referred and following them I must hold that the appeal before us is not maintainable. The appeal accordingly is dismissed.

11. We have been then askad to deal with the order of the District Judge in revision. The ground on which we are asked to do so is that his decision on the question of limitation is wrong. My own view of this question I have had occasion to express in Satish Chandra De v. Bakhal Chandra , but, assuming that I am not right in the view that I entertain, I am not prepared, upon the findings of fact which the learned Judge has recorded, to interefere with his decision merely because he may have taken an erroneous view of law on the question of limitation. This application accordingly must be rejected. As regards the appeal in view of the unsatisfactory character of the order appealed from each party will bear their own costs.

Roy, J.

12. I agree.

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