UDAYCHAND MAHATAB Vs. RAMMOY HAJRA

JUDGEMENT

(1.) Two points have been urged in support of this appeal. The first is that the executing court was not right in directing that the eight annas share of judgment-debtors Nos. 4 and 5 in the tenure concerned should be put up to auction in the first instance and that "if the bidding did not liquidate the decretal dues," the entire tenure, including the other eight annas share of judgment debtors Nos. 1 to 3, should then be put to auction. The second ground urged is that the executing court was not right in holding that there must be a fresh sale proclamation under Section 163 of the Bengal Tenancy Act for the reason that there had been no bidding at the previous attempt at a sale.

(2.) The facts, broadly stated, are that the appellant obtained a rent decree on January 13, 1948, against a number of judgment debtors, of whom only five need now be considered. It is stated, and there is no dispute on the point, that judgment-debtors Nos. 1 to 3 who are respondents Nos. 1 to 3 in this appeal, have already paid up a half share of the decretal dues by way of a deposit made in court in a previous execution case. In the present execution, a proclamation of sale was first issued under Section 163 of the Bengal Tenancy Act, but on the date fixed for the sale, which was to be a sale subject to encumbrances, there were no bidders. It appears that thereafter the decree-holder asked for the issue of a fresh proclamation of sale, with power to annul encumbrances, and that prayer was allowed by an order passed on November 9, 1949. Subsequently, the order under appeal was passed and the order of November 9, 1949 was set aside, because the learned Judge thought that the stage of Section 163 had not been passed, inasmuch as the tenure had not actually been put up for auction and necessarily there had been no actual bidding.

(3.) I shall deal with the second point first.