BENI MADHAB ROY Vs. BISSESWAR BHARATI

JUDGEMENT

(1.) We are invited in this Rule to set aside an order made by the Court of appeal below on the ground that the appeal to that Court was incompetent, and the order in question was consequently made without jurisdiction.

(2.) It appears that the petitioner obtained a decree for rent on the 30th November 1908. The claim was under Rs. 50 in value and the Munsif who tried the suit was invested with final jurisdiction under Section 153 of the Bengal Tenancy Act. An appeal was preferred against that decree notwithstanding these circumstances, and was apparently heard without objection. The appeal was allowed in part and the decree of primary Court was varied in favour of the appellant on the 22nd February 1910. In execution of that decree, the holding was sold on the 20th June following and was purchased by the decree-holder. On the 16th July 1910, the judgment-debtor brought into Court a sum adequate in his estimation for the reversal of the sale under Section 174 of the Bengal Tenancy Act. Objection was taken to the sufficiency of this sum and was upheld by the Court as the poundage fee had not been deposited. The result was that the application under Section 174 was refused and the sale was confirmed on the 15th August 1910. This order was made by a Munsif who was invested with final jurisdiction under Section 153 of the Bengal Tenancy Act. The judgment-debtor then preferred an appeal to the District Judge. An objection was taken, on behalf of the decree-holder auction- purchaser respondent, to the competency of the appeal but was overruled. The learned Judge then heard the appeal on the merits and allowed it. He held that the judgment-debtor was not bound to deposit the poundage-fee, as under the rules of this Court, the decree-holder upon reversal of the sale would be entitled to a refund of all the sums he had deposited on that account. The District Judge accordingly reversed the sale. We are invited to set aside this order on the ground that the appeal to the Judge was incompetent.

(3.) In answer to the Rule, it has been contended, first, that the appeal was competent, secondly, that, as laid down in Kishori Mohun v. Saradamani Dasi 1 C.W.N. 30, this Court ought not to interfere because the order which has been made by the District Judge is right on the merits and should not be disturbed; and thirdly, that as the decree under execution was made without jurisdiction, the sale is a nullity and the reversal of such a sale does not operate to the prejudice of the auction-purchaser.