MIDNAPUR ZEMINDARY CO LTD Vs. PRIYABALA DASEE

JUDGEMENT

(1.) This is an appeal by the Midnapur Zamindari Co., Ltd., who are the decree-holders is a certain suit for rent. The appeal arises out of proceedings taken under Section 174, Ben. Ten. Act, to sat aside the sale held in execution of a rent decree obtained by the Midnapur Zamindari Co., Ltd. The respondents, who are judgment-debtors 1 to 3, challenged the sale on three grounds: (1) that there was no service of sale proclamation or any process in the execution case, (2) that the judgment-debtors 2 and 3 were not properly represented in the execution case and (3) that there ware great irregularities in the publication and conduct of the sale.

(2.) The case of the judgment-debtors was that the processes in execution were fraudulently suppressed by the officers of the decree-holders, and that they came to know of the sale some time in Bhadra or Ashwin, which would correspond to September, and the application to set aside the sale-was made on 12th November. The decree-holders contested the application of the judgment-debtors. They travarsed all the allegations about non-service of sale proclamation and denied that there had been irregularities in the publication of the sale proclamation. They also contended that the judgment-debtors have not suffered substantial injury and they further said that the decree in execution of which the property was sold was not a nullity, in so far as the infant judgment-debtors are concerned, it being their case that they were not minors. The Munsif found on the question of fraud against the judgment-debtors and he accordingly dismissed the petitioner s application, being of opinion that the application was barred by limitation. An appeal was taken to the Court of the Subordinate Judge, who has taken a contrary view and has set aside the sale.

(3.) Against this decision, the present appeal has been brought, and a preliminary objection to the hearing of the appeal has been taken by the respondents on the ground that, under the provisions of Section 174(3), Ban. Ten. Act, as amended by Bengal Act 4 of 1928, no appeal is permissible and that the law allows only one appeal. The question arose before us on a previous occasion, but there has been no final determination of this question. On the present occasion also, as we are against the appellants on the merits of the appeal, it is not necessary to deal with the preliminary objection. The main contention which has been raised on behalf of the decree-holders by their learned Counsel, Mr. U.N. Sen Gupta, is that the provisions of Section 18, Lim. Act, do not apply to the present case and that, as admittedly the application was not made within six months of the data of the sale as is required by the provisions of Section 174 of the amended Bengal Tenancy Act, the lower appellate Court has committed an error of law in holding that the application was not barred by time. The question therefore which we have to decide in this appeal is as to whether the provisions of Section 18 apply to applications under Section 174 of the amended Bengal Tenancy Act; and it is conceded that, if Section 18, Lim. Act, govern the present case, the application is within time on the findings arrived at by the lower appellate Court, that the judgment-debtors came to know of the sale within a few days of the date of the application to set aside the sale.