SAILABALA DASSI Vs. KALIPADA BANERJEE

JUDGEMENT

(1.) This is an application against an order passed by the Additional District Judge of the 24- Parganas whereby he held, reversing the decision of the first Court, that an application for setting aside a sale under Order 21, Rule 90, Civil P. C., was within time. What happened in the case was this: One Kanti Chandra Chowdhury after obtaining a decree for arrears of rent put up the holding to sale. The holding was sold on 14 March 1928 and the sale was confirmed on 26 May of the same year. Kanti in due course applied for withdrawal of the sale proceeds. But before his application for withdrawal was disposed of, he died on 3rd September 1928, leaving his widow Saila Bala Dassi as his representative. Sailabala got herself substituted in the application for withdrawal on 1 December 1928, and on 18th January 1928 she withdrew the money. On 3 September 1929 a person who was a mortgagee from the tenant put in an application for setting aside the sale under Order 21, Rule 90, alleging in his application that he had come to know of the sale only on 28 August 1929 and in his application for setting aside the sale the mortgagee made Kanti the opposite party. On 19 November 1929 the mortgagee applicant brought the widow Sailabala on record. This application for setting aside the sale was opposed on the ground that the 19th November 1929 was more than thirty days after the alleged knowledge. This objection found favour with the first Court which dismissed the application on the ground of limitation. The order of the first Court, as I have stated before, was reversed by the learned Additional District Judge who held that the application was within time.

(2.) The question for consideration is whether the application which the mortgagee put in on 3 September 1929 was an application which could be called competent. In this application Kanti, a dead person, was no doubt made an opposite party. But if the petitioner made Kanti an opposite party he did so with the bona fide belief that Kanti was still the decree-holder, A peiusal of the whole of the order sheet in the execution proceedings consisting of as many as 77 orders might it is true discloss the fact that Kanti before 3 September 1929 had died. But the learned Judge exonerated the applicant if he had taken Kanti as the decree-holder who was still alive. The order which would disclose that Kanti had died and his widow Sailabala had been substituted was passed not in an order dealing directly with the execution proceedings but in an order in one of the miscellaneous cases which was started out of the proceedings in execution. We are therefore of opinion that the learned Additional District Judge was not wrong when, in the circumstances of the case, he held that the application for setting aside the sale filed on 3 September 1929 was not an incompetent application.

(3.) The result is that the Rule must be discharged with costs. Hearing fee two gold mohurs. Pearson, J.