DHANESWAR RAUT Vs. RAGHUNATH JENA

JUDGEMENT

(1.) ON 15 January, 1931, Dhaneswar Raut purchased a non-transferable occupancy holding in execution of a rent decree. ON the 13 February the decretal amount was deposited in court on behalf, of one of the judgment-debtors with an application to set aside the sale. There was an objection by the auction- purchaser, and subsequently on the 10 March the judgment-debtor applied to withdraw the deposit and the sale was confirmed. Raghunath Jena who had purchased a part of the holding prior to the auction-sale, applied on the 11 June to set the sale aside, aft application purporting to be under Section 47 or Section 151 and Order XXI, Rule 90, Civil Procedure Code. The execution court dismissed the application on the ground of limitation. Raghunath appealed to the Collector con-Landing that his application was not barred as it was only a step in continuation of the previous application filed by the judgment-debtor on 13th February, 1931, and was, therefore, in time. The Collector allowed the appeal, set aside the order confirming the sale, and remanded the case of the executing court to determine whether in fact a deposit under Section 228, Orissa Tenancy Act, had been made by the judgment-debtor.

(2.) AGAINST that order the auction-purchaser has applied in revision and it is contended that Raghunath Jena not himself being a judgment-debtor had, no locus stand under Section 228, Orissa Tenancy Act, to apply to set aside the sale. The case, however, appeals to be covered by the decision in Nityanand Das v. Udainarayan Mandal 22 Ind. Cas. 885 : A.I.R. 1915 : Cal. 305 : 18 C.W.N. 175 which was a decision under the corresponding section of the Bengal Tenancy Act. In that case also a purchaser of the holding prior to an execution sale applied to the court to set the sale aside after the judgment-debtor had withdrawn a deposit which they had previously made and the court directed the sale to be set aside. The petition is rejected.