SUSAMABALA MANNA Vs. PROFULLAMOYEE DEBI

JUDGEMENT

(1.) This Rule by the auction-purchaser arises out of an appln under Section 174 (3), Bengal Tenancy Act, for setting aside a Court sale on the usual ground of fraud & material irregularity in publishing & conducting the sale resulting in gross inadequacy of price fetched by the sale. The appln was dismissed by the trial Court which found in favour of the auction-purchaser upon all the material points. Against that decision an appeal was preferred by the judgment-debtor & in appeal the learned Subordinate Judge has reversed the decision of the trial Court holding inter alia that the sale was brought about by fraud & material irregularity & that the price fetched by the sale was grossly inadequate.

(2.) The impugned sale was held on 15/5/1946 & the present appln for setting aside the sale was filed on 23-6-1948. Apparenty, therefore, the appln was time barred but limitation was sought to be saved by invoking the aid of Section 18, Limitation Act.

(3.) Various points have been canvassed before me. The point upon which considerable stress was laid on the side of the auction-purchaser was regarding the competency of the lower appellate Ct. The point arises in this way: The appeal was filed before the lower appellate Court on 6/6/1949. On that day, however, the deposit required under Section 174 (5), Bengal Tenancy Act, was not made. That deposit was made on 16/5/1950. Under Sub-clause (5), no appeal shall be admitted unless the applt deposits such amount in Ct. It is contended by Mr. Janah on behalf of the auction-purchaser that as in the present case the necessary deposit was made long after the admission of the appeal, the appeal was incompetent. Prima facie, this is a valid argument. This objection was raised in the lower appellate Court as well & that Court came to the conclusion that in view of all the circumstances of the case it was abundantly clear that there was a bona fide mistake & as such in a case like this the time should be extended upto the time of actual deposit in order to do justice between the parties. I can well understand in the circumstances of the present case the contention that the omission to make the deposit earlier than 16-5-1950 was due to a bona fide mistake but the point is whether the Court is competent in the circumstances to extend the time. The first order by the lower appellate Court in this appeal dated 6-6-1949 runs thus. "Register Admit Applt to file requisite process & process fee by 8-6-1949". I have looked into the order-sheet & it seems to me that the word "admit" was written by the learned Judge himself. If that be so, that preliminary order passed on 6-6-1949 was clearly a judicial order & not a mere ministerial act. Even assuming that the word "admit" was not written by the learned Judge himself, the whole order as it stands amounts, in my opinion, to a judicial order for which the "responsibility was that of the learned Judge himself. As the order stands, I cannot construe it to mean that the order was passed by the learned Judge without applying his judicial mind. It might be that at that time it escaped the notice of all the parties concerned including the learned Judge himself that the necessary deposit was wanting in the case but that is no reason why there should be any abrogation from the clear terms of the statute. In these circumstances, I am inclined to think that the appeal was incompetent, the necessary deposit having been made long after, that is, on 16-5-1950. It was contended on behalf of the judgment debtor that as the mistake was a purely bona fide one it could be condoned by giving the judgment-debtor applt the benefit of Section 5, Limitation Act. As regards this contention, Section 29, Limitation Act, read with Section 184, Bengal Tenancy Act, stands in the way as Section 5, Limitation Act, is not specifically mentioned in Section 29, Limitation Act, & that being so there is no scope for the appln of Section 5, Limitation Act, in the present case. The order of the lower appellate Court setting aside the sale is thus liable to be set aside on this ground alone.