JOYTARA Vs. RAM KRISHNA SEAL

JUDGEMENT

(1.) We are invited in this case to set aside an order of the Court of appeal below made in reversal of an order of the original Court under Sub-section (3) of Section 173 of the Bengal Tenancy Act. The Maharaja of Tipperah, in execution of a decree against a recorded tenant, Dayamoyi, brought a holding to sale on the 6 September 1905. The property was purchased by one Ramkissen Seal. On the 27 February 1909, one Joytara, the sister of Dayamoyi, made an application to set aside the sale on the ground that the holding originally belonged to her father Jagan Nath Seal, that upon his death it was inherited by his four daughters, Dayamoyi, Joytara, Soraswati and Jasoda, that the decree for rent had been obtained against Dayamoyi alone, and that at the execution sale the holding had been purchased for an insignificant price by Dayamoyi in the name of the ostensible purchaser, Ram Kissen Seal, with a view to extinguish the interests of her sisters. She consequently prayed that the sale might be set aside under sub-section (3) of Section 173 of the Bengal Tenancy Act. She joined as opposite parties to this application, the decree-holder, the judgment-debtor, and the auction-purchaser. Subsequently, as it was alleged that the auction-purchaserhad, meanwhile, transferred the property, the transferee also was added as an opposite party. The application was resisted on the grounds that it was barred by limitation, that the petitioner Joytara had no interest in the property because it had been sold by their father to Dayamoyi and that it had not been purchased by Dayamoyi at the execution sale in the name of the auction-purchaser. The Court over ruled the objection of limitation on the ground that the facts established brought the case within Section 18 of the Limitation Act. The Court also found that the holding belonged to all the sisters and that it had been purchased by the judgment-debtor for an in significant price in the name of her near relation, Ram Kissen Seal. In this view the Court of first instance set aside the sale under Section 173, sub- Section 3, of the Bengal Tenancy Act. The decree-holder then appealed to the District Judge and he joined as parties respondents, the petitioner Joytara, the judgment-debtor, the auction-purchaser and the transferee from the latter. A preliminary objection -was taken to the hearing of the appeal that it was not allowed by law. The learned Judge over ruled this objection on the ground that the appeal was competent upon the authority of the decision in Chand Monee v. Santo Monie 24 C. 707 : 1 C.W.N. 534. He then heard the appeal on the merits, and reversed the decision of the Court of first instance, because in his opinion, the application under Section 173 was barred by limitation. We are now invited by the applicant under Section 173 to discharge this order in the exercise, either of our revisional or of our appellate jurisdiction, on the ground that no appeal lay against the order of the original Court to the District Judge.

(2.) To determine whether the appeal to the District Judge was competent, it has to be observed at the outset that no appeal is allowed against an order under Section 1 sub-Section 3, of the Bengal Tenancy Act by any provision in the Statute itself. Nor is an order under Section 173 included in the list of orders made appealable as such by the Code of Civil Procedure of 1908. But it has been suggested that the order may be treated as one made under Section 47 of the Code and is consequently a decree under Section 2(2) and appealable as such. The tests to be applied to determine the soundness of the contention are two-fold; first, is the question raised in the application under Section 173 one between the parties to the suit in which the decree was passed or their representatives, and, secondly, does the question relate to execution of the decree P In so far as this second condition is concerned, it is obviously satisfied, because if the objection prevails and the sale is reversed, the decree- holder must proceed with execution a fresh. The only point, therefore, which requires consideration is, whether the first condition is satisfied, namely, whether the question raised arises between the parties to the suit or their representatives. Now, it is pointed out by their Lordships of the Judicial Committee in the case of Prosunno Kumar Sanyal V/s. Kali Das Sanyal 19 C. 683 : 19 I.A. 166. that if the question really arises between the parties to the suit or their representatives, it does not cease to be so because the purchaser at judicial sale, who is no party to the decree where of the execution is in question, is also interested and concerned in the result. The fact, therefore, that the purchaser in this case who is asserted by the petitioner to be no other than the judgment-debtor herself is affected by the result of the proceeding, does not in any way alter its character. The point, therefore, narrows down to this: Is the petitioner a representative of one of the parties to the suit within the meaning of Section 47 of the Code. Much reliance has been placed by the judgment-debtor and the auction-purchaser upon the decision of the Full Bench in Ishan Chunder V/s. Beni Madhub 24 C. 683 : 1 C.W.N. 36, where it was ruled that the term representative, when taken with reference to the judgment-debtor, means his representative in interest, and includes a purchaser of his interest, who, so far as such interest is concerned, is bound by the decree. On the basis of this principle, it has been argued that the petitioner, in so far as she is an unrecorded sharer in the tenancy, is a representative of the recorded tenant, the judgment- debtor against whom the decree for rent was obtained. In our opinion, this position is not only contradictory to the contention that the petitioner has no interest at all in the tenancy but is also unsustainable on principle. If A, B and C are interested in a tenancy while the name of A alone is recorded in the books of the landlord who obtains a decree for rent against him, it is difficult to appreciate how B and C can be rightly regarded as the representatives-in-interest of A. It would, in our opinion, be an unwarrantable extension of the rule, laid down in the case of Ishan Chunder Sarkar V/s. Beni Madhub Sarkar 24 C. 62 : 1 C.W.N. 36 and applied in the case of a transferee from the recorded tenant in Azgar Ali V/s. Asdboddin Kazi 9 C.W.N. 134, to hold that B and C are the representatives-in-interest of A. It might with more propriety be maintained that for the purposes of the tenancy and of the suit for arrears of rent, A represented B and C. It is worthy of remark, however, that such air unrecorded co-sharer would be entitled to apply for reversal of the sale under Order XXI, Rule 90, of the Code of 1908, as a person whose interests are affected by the sale. But we are not prepared to hold that such an unrecorded co-sharer is a representative-in-interest of the recorded tenant within the meaning of Section 47 of the Code of 1908. Such unrecorded co-sharer does not derive his interests from the recorded co-sharer; their interests are co-ordinate; and the unrecorded sharer cannot be appropriately described as the representative-in-interest of the recorded co- sharer. Consequently, in the case before us, the question raised by the application under Section 173, sub- Section 24 C. 683 : 1 C. W. N. 36, did not arise between the parties to the suit or their representative. The order of the original Court, therefore, was not a decree and not appealable as such.

(3.) Our attention was invited to a number of judicial decisions which are, perhaps, not easy to reconcile. A detailed examination of these cases is 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 cases in the books which may be open to criticism. The case nearest in point is that of Raghu Singh V/s. Misri Singh 21 C. 825, where the application was made by an unrecorded co-sharer in the tenancy. The learned Judges held that the order was not within the scope of Section 244 of the Code of 1882, because the applicant was an outsider and not a party to the suit; it was not considered, however, whether he was a representative of the judgment-debtor. In Chand Monee V/s. Santo Monee 24 C. 707 : 1 C.W.N. 534 , 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 bad purchased the property in the name of his wife. The question was raised, therefore, between the parties to the suit and was clearly within the scope of Section 244. In Harabandhu Adhikarij V/s. Harish Chandra Dey Pal 3 C.W.N. 184, the application was made by a purchaser from the recorded tenant and the contest was apparently between the applicant and the auction-purchaser. Even if, therefore, file purchaser could be treated as a representative of the judgment-debtor, the question might not fall within Section 244, on the principle explained by Mr. Justice Banerjee, in Hira Lal Ghose V/s. Chundra Kanta Ghost 26 C. 539 at p. 513 : 3 C.W.N. 103 : see also Amir Rai V/s. Basdeo Singh 5 C.L.J. 204. But the same learned Judge appears to have ignored the distinction in the case of Sriram Chandra Sen V/s. Guru Das Kundu 3 C.W.N. xiv, where he held that an appeal might lie at the instance of the judgment- debtor though it might not lie at the instance of the applicant under Section 173. But obviously, as pointed out in the case of Hira Lal V/s. Chandra Kanta 26 C. 539 at p. 513 : 3 C.W.N. 103 , the answer to the question whether an appeal lies or not depends upon the nature of the order and not upon who happens to be the appellant. The distinction was possibly overlooked also in Mohima Chandra V/s. Jogendra Kumar 3 C.W.N. civ. in the case before us, it is, in our opinion, clear upon the principles already explained that the appeal preferred to the District Judge was incompetent. The result is that the Rule is made absolute, the order of the District Judge discharged and that of the Court of the first instance restored with costs both here and in the Court below. The costs will be paid by the transferee from the auction-purchaser here and by the decree holder in the Court of appeal below. We assess the hearing fee in this Court at two gold mohurs.