KESHO PRASAD SINGH Vs. MADHO PRASAD SINGH

JUDGEMENT

(1.) The facts of the case out of which this appeal has arisen are these: The Maharaja of Dumraon, who is the appellant, obtained a decree in a rent suit brought against two persons who had formerly been tenants of the holding and also against the respondents who had purchased the holding in the year 1926, corresponding to 1333-F, at a Court sale held in execution of a previous rent decree. The appellant's suit Was for the years 1331 to 1333-F and the decree he obtained was for a total sum of Rs. 551 out of which the original raiyats were liable for Rs. 413 and the respondent for the balance, those sums being the rents for the periods during which they were respectively tenants of the holding.

(2.) It was executed as a rent decree for the whole amount and the holding was put up for sale and bought by the appellant. Subsequently the respondent made an application under Order 21, Rule 90, Civil P.C., to have the sale set aside on the ground of material irregularities in consequence of which it was alleged that the respondent had sustained substantial injury. This application was dismissed by the execution Court and an appeal against the decision of that Court to the District Judge proved unsuccessful. An application in revision was then made to the High Court and was allowed, the case being remanded to the executing Court with a direction to consider the application as having been made under Section 47, Civil P.C. It was again dismissed by the execution Court, but allowed on appeal by the District Judge.

(3.) The present appeal is against the latter decision. It is contended on behalf of the appellant that the execution of the decree by sale of the respondent's holding for realization of a larger amount than the respondent was liable to pay Was only an irregularity and as the holding was sold for the amount which the respondent had himself paid for it he sustained no loss. The question however is whether the sale was at all valid. The decree in respect of the larger sum due from the previous tenants was not a decree for rent that could have been lawfully executed according to the provisions of the Bengal Tenancy Act by sale of the holding.