LAKSHMIDAR MAHANTI Vs. RATNAKAR MAHAPATRA

JUDGEMENT

(1.) ON January 12, 1907, a person got a decree for arrears in respect of rents of lands in Orissa. In respect of that decree, the lands were on June 27, 1907, ordered to he sold, and on September 27, 1907, the father of the appellant, whom he now represents, was declared the: purchaser. Within thirty days thereafter, the judgment debtor deposited the full sum and costs, and accordingly on December 23, 1907, the sale was set aside under the terms of Section 174 of the Bengal Tenancy Act of 1885. Against that setting aside an appeal was taken to the Collector, who reversed the judgment of the Deputy Collector and confirmed the sale. An appeal from his decision was taken to the Commissioner, who, on July 15, 1908, upheld the decision of the Collector, and on February 16, 1909, a sale certificate was granted.

(2.) ON May 26, 1909, the present suit was raised in the Civil Court by the judgment debtor, and the Subordinate Judge, taking the same view as the Commissioner had taken, by his decree dismissed the suit. An appeal was taken to the Calcutta High Court, and the Calcutta High Court dealt with it as follows: "The point as to whether Section 174 of the Bengal Tenancy Act applies to sale of a holding in Orissa is concluded by authority in the case of Barkal Parida v. Jogendra Nath Sen 16 Cal. W.N. 311, decided in this Court," and they accordingly reversed the decree of the Subordinate Judge. An appeal has now been taken to His Majesty in Council against the decree of the High Court. It is therefore practically an appeal against the judgment in the case just cited.

(3.) SECTION 174 of that Act deals with applications to set aside a sale. It says: "Where a tenure or holding is sold for an arrear of rent due thereon, then, at any time within thirty days from the date of sale, the judgment debtor may apply to have the sale set aside, on his depositing in Court...the amount recoverable under the decree," and so on. Then it provides that there shall be an order setting aside the sale. It is quite obvious that those words apply to the facts in this case, because the amount was deposited within thirty days of the sale. The sale being in September, 1907, was after the extension to Orissa of the Bengal Tenancy Act. Accordingly the whole argument really turns on this: that Section 174 can only apply to suits that originate in the Civil Court, and cannot apply to suits that originate in the Collector's Court under the law as it stood in Orissa before this section was introduced. Under the law as it stood in Orissa, under Act VIII. of 1865--the sections need not be gone through, because the result of them can be given quite shortly--the period is eight days for setting aside a sale like this instead of thirty.