BIPIN BEHARI BAIDYA Vs. SURYA KANTA JANA

JUDGEMENT

(1.) THIS appeal on behalf of the judgment-debtor No. 3 arises out of an application under section 174 (3) of the Bengal Tenancy Act and also under the provisions of Order 21, Rule 90 of the Code of Civil Procedure for setting aside an auction sale held on September 28, 1956 in Rent Execution Case No. 637 of 1955 on the grounds of material irregularity and fraud in publishing and conducting the sale and also that the petitioner has suffered substantial injury as a result thereof.

(2.) THE facts shortly are that on April 15, 1953 a suit was instituted for recovery of arrears of rent against six persons, namely, (1) Parbati, (2) Lakshmi (3) Bepin, (4) Atul, (5) Suryamoni and (6) Moynamoyee. On February 3, 1954, the suit was decreed exparte against all. In the same year, the said decree was executed for the first time, giving rise to the Rent Execution Case no. 547 of 1954 which was disposed of on December 9, 1954 without realisation of any sum under the decree. Thereafter on April 20, 1955 the present execution case, being Execution Case No. 637 of 1955, was started by the decree-holder, Malati Manjari Dasi, wife of Suryakanta Jana (Respondent No. 1 herein), in the Court of the Second Munsif, Bashirhat against the said six persons for the total claim of Rs. 675/15/- inclusive of costs. On that very day there is an order of the learned munsif for the issue of a combined order of attachment and sale proclamation under the provisions of section 168 of the Bengal Tenancy Act and July 7, 1955, was fixed for putting up the defaulting holding to sale, which sale was not held on that date. It was adjourned to 25th July, 1955, on which date, the learned Munsif found that the property sought to be attached and proposed to be sold, have already been sold in another execution case, namely, Rent Execution Case No. 123 of 1955 of the said Court and auction-purchased by third parties, namely, Mussammat Aminunessa Bibi and Shibdas Kundu. On that basis the learned Munsif also found that the judgment-debtor had no saleable interest in that property and so the decree-holder could not proceed against the property in the instant execution case, namely, No. 637 of 1955. However, liberty was given to the decree-holder to proceed with the execution by amending the same if so advised and 9th August, 1955 was fixed for taking steps. On August 9, the decree-holder files a petition (Exhibit 2), stating that she does not admit that the execution cannot proceed but avers that in any event, the right, title and interest of Atul having -/4/- annas share in the property, not having been sold in the other execution case, might be proceeded against in the present execution case. On the said application the learned Munsif passed an order giving permission to the decree-holder to proceed in respect of only -/4/- annas share of Atul (judgment-debtor No. 4 in the present case ). An order was passed by the learned Munsif after hearing the pleaders that the decree-holder was to take steps for service of notice upon the heirs of Behari, viz. , Atul and others. In other words, permission was given to the decree-holder to proceed against Behari's heirs only, in respect of -/4/- annas share in the property and not against the other judgment-debtors. But it appears from the subsequent proceedings, that notices have been served on all the judgment-debtors, namely, the said six persons and the properties in excess of -/4/- annas share were sold on September 28, 1956 and purchased by the decree-holder's husband, the said Surya Kanta Jana. The sale was confirmed on November 22, 1956.

(3.) ON May 5, 1958 the present application by judgment-debtor No. 3 was filed for setting aside the sale, giving rise to Miscellaneous Case No. 70 of 1958. The learned Munsif allowed the application. The auction-purchaser filed an appeal there from to the Court of appeal below which was allowed. Judgment-debtor No. 3 then filed this appeal and also filed an application for revision against the said order on which a Rule was also issued, which has been disposed of separately.