MOFIJUDDIN MUHURI Vs. MOFIZUDDIN

JUDGEMENT

(1.) This is a reference made by the Munsif of the Central Court, Comilla, under Order 46, Rule 1, Civil P. C. None of the parties have appeared, but Mr. Abinash Ghose has very kindly and ably assisted the Court as amicus curiae. The case arose on an application made by mortgagees under Section 174(3), Ban. Ten. Act, as persons whose interests were affected by the sale of a holding for arrears of rent. The decree-holder was willing to allow the sale to be set aside on condition that the mortgagees paid to him the decretal amount. This they were unwilling to do, on the ground that proviso (b) to the subsection did not apply to them, because no amount was recoverable from them in execution of the decree.

(2.) The questions which we are asked to decide are: (a) Whether an applicant, other than a judgment debtor, whose interests are affected by the sale must either deposit the amount recoverable in execution of the decree, or satisfy the Court, that no such deposit is necessary (b) If relief be granted and the sale be set aside, whether the deposit made by such an applicant ought to be used to satisfy the decree, or returned to the applicant, (c) Ought such deposit to be made before the application is beard? Secs.174 and 174-A, Ben. Ten. Act, have been adopted from Order 21, Rules 89, 90, 92 and 93, Civil P. C. Of Section 174, sub- Secs.(1) and (2) are founded upon Order 21, Rule 89; sub Section (3) and proviso (a) thereto on Rule 90, while Section 174-A is founded upon Rules 92 and 93. But proviso (b) to sub- Section (3) is new, and has been added to the scheme thus outlined in the Code, without clearly defining its incidence and its terms, and without sufficient consideration of its bearing on the rest of the sections. Hence the difficulties which have arisen in applying the sub- section. The relevant provisions are: Sub- Section (3) where a tenure or holding has been sold for arrears of rent due thereon, the decree-holder, the judgment-debtor, or any person whose interests are affected by the sale, may, at any time within six months from the date of the sale, apply to the Court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting the sale.

(3.) Provided as follows: (a) no sale shall be set aside on any such ground unless the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud; and (b) no application made by a judgment-debtor or any person whose interests are affected by the sale under this sub-section shall be allowed unless the applicant either deposits the amount recoverable from him in execution of the decree or satisfies the Court, for reasons to be recorded by it in writing, that no such deposit is necessary. Sub- Section (4), Rule 91, Order 21 in Schedule 1, Civil P. C, 1908, shall not apply to any sale under this chapter: sub- Section (5). An appeal shall lie against an order setting aside or refusing to set aside a sale: Provided that where the Court has refused to set aside the sale on the application of the judgment-debtor or any person whose interests are affected by the sale and the amount recoverable in execution of the decree is not in deposit in Court, no such appeal shall be admitted unless the appellant deposits such amount in Court, The word "applicant" in proviso (b) is applicable both to a "judgment-debtor" and to a person whose interests are "affected by the sale," but the "amount recoverable from him in execution of a decree" cannot be said to be recoverable from a mortgagee or other person interested, except by a misuse of language. On the other hand, it is clear from the very words of the proviso that the legislature intended it to apply to persons so interested, otherwise it was unnecessary to include such persons within its terms.