RAGHUBAR DAYAL SUKUL Vs. JADU NANDAN MISSIR

JUDGEMENT

(1.) This appeal is directed against an order by which the Court of Appeal below in reversal of the order of the Court of first instance has set aside an execution sale. It appears that the appellants obtained a decree for rent on the 12th August 1909. They applied for execution on the 14th September following and themselves purchased the properties at the execution sale on the 13th December 1909 for Rs. 99-11. The purchase-money was not brought into Court but was set off against the judgment-debt. On the 10th January 1910, the judgment-debtor applied to have the sale set aside under Section 174 of the Bengal Tenancy Act and on the next day deposited Rs. 100-3. On the day following, the Court directed the judgment-debtors to deposit an additional sum of Rs. 4-8 inasmuch as the office had reported that the amount deposited was insufficient. Thereupon, the judgment-debtors paid into Court Rs. 5 on the 13th January 1910. Two days later, upon the objection of the decree-holders auction-purchasers, the Court dismissed the application, as the judgment-debtors had failed to deposit the decretal amount with compensation in full within 30 days of the sale as required by Section 174 of the Bengal Tenancy Act, The judgment-debtors appealed against that order. The District Judge, upon this appeal, has held, on the authority of the decision in Amir Hussain Khan v. Nanak Chand 6 Ind. Case. 424 : 14 C.W.N. 882 : 12 C.L.J. 62 that the Court had authority to extend the time within which the deposit was to be made and that it was consequently unfair to refuse to set aside the sale after the judgment-debtors had carried out the order of the Court for payment of the balance of the sum due. In this view the District Judge has allowed the appeal and reversed the sale.

(2.) The decree holders-purchasers have now appealed to this Court and on their behalf the decision of the District Judge has been assailed on the ground that it was not competent either to the original Court or to the Court of Appeal below to extend the time within which the judgment-debtors were required by law to make the necessary deposit. In support of this proposition reliance has been placed upon the case of Sharofan v. Muhamed Habibuddin 10 Ind. Cas. 148 : 13 C.L.J. 535 : 15 C.W.N. 685. On behalf of the judgment-debtors it has been suggested that the appeal is incompetent because the order of the original Court could not rightly be treated as an order under Section 47 of the Code of 1903. It has also been argued chat the judgment-debtors had deposited within the time allowed by law whatever sum was justly payable by them and the decree-holders were consequently not entitled to resist the application for reversal of the sale. Before we deal with the case on the merits, it is necessary to examine briefly the objection to the competency of the appeal taken on behalf of the respondent.

(3.) The preliminary objection ought to be overruled, in our opinion, on two grounds. In the first place, the judgment-debtors appealed to the District Judge on the assumption that the adverse order of the Court of first instance had been made under Section 174 of the Bengal Tenancy Act read with Section 47 of the Code of Civil Procedure of 1908. It is, therefore, not competent to them to urge before this Court that the order in their favour by the District Judge was, as a matter of fact, made without jurisdiction and that although the appeal preferred by them was incompetent, it is not open to the decree-holders to assail that order by way of appeal. It was pointed out by this Court in the case of Bindeswari Prosad Singh v. Lakpat Nath Singh 15 C.W.N. 725 : 8 Ind. Cas. 26 that it is not open to a party litigant to assume inconsistent positions of this character. As we have just explained, the respondents have succeeded in the Court of the District Judge on the assumption that the order of the original Court was of a particular description: they cannot now be permitted to turn round and assume an entirely different and inconsistent position. In the second place, we are of opinion that the order of the original Court must be treated as one within the scope of Section 47 of the Code of 1908 and in the nature of a decree against which a first appeal and a second appeal lie under the law. It was pointed out by this Court in the case of Joytara v. Pran Krishna Seal 7 Ind. Cas. 769 : 15 C.L.J. 257 : 15 C.W.N. 512 that the answer to the question, whether an order in execution proceedings is within the scope of Section 47 of the Code of 1903 must depend upon its nature and contents. If it decides a question relating to the execution, satisfaction or discharge of the decree and if the decision has been given between parties to the suit or their representatives-in-interest, the order of the Court falls within the scope of Section 47 and is a decree within the meaning of Section 2. Tested in the light of this principle, there can be no room for serious controversy that the order of the original Court in the case before us was a decree, and in support of this position it is sufficient to refer to the oases of Chundi Charan Mandal v. Banke Behary Lal Mandal 26 C. 449 : 3 C.W.N. 283 and Sital Rai v. Nanda Lal 1 Ind. Cas. 304 : 13 C.W.N. 591 : 11 C.L.J. 202. In both these cases the decree-holder was the auction-purchaser. The sale has been held in execution of a decree for arrears of rent and the order of which the propriety was called in question, bad been made tinder Section 174 of the Bengal Tenancy Act. In both instances, it was held that the order was appealable as a decree. The recent decision of this Court in Asimuddi Sheikh v. Sundari Bibee 10 Ind. Cas. 345 : 38 C. 339 : 15 C.W.N. 844 : 14 C.L.:J. 224 does not militate against that view. That decision merely points out that in cases under Rule 89 of Order XXI of the Code of 1908, which corresponds to Section 310A of the Code of 1882, only a first appeal is allowed under the new Code. That is so, because the order is made appealable under Rule 1, Clause (1) of Order XLIII of the Code, and consequently a second appeal is barred under the provisions of Sub-section 2 of Section 184. But an order under Section 174 of the Bengal Tenancy Act is not appealable under Order XLIII of the Code of 1908 and Sub-section 2 of Section 104 does not, therefore, bar a second appeal. The result is that the preliminary objection mast be overruled and the propriety of the order of the District Judge examined on the merits.