JOYMANGALSEN Vs. SABAFAT ALI

JUDGEMENT

(1.) This Rule is directed against an order of the Subordinate Judge of Chittagong decreeing an appeal preferred by the opposite party from the decision of the Munsif and setting aside the sale of the disputed property. The facts of the case are that the petitioner who is a landlord obtained a decree in a rent suit against the tenant Nayan Khan. The suit was valued at Rs. 20 and odd annas. It was not disputed that the holding was a non-transferable occupancy holding. The petitioner attempted to execute the decree. The opposite party made an application for deposit of the decretal amount under Section 170 15 Ind. Cas. 486 : 17 C.W.N. 84 : 16 C.L.J. 542 of the Bengal Tenancy Act on the ground that he was a purchaser of the holding from the tenant judgment-debtor. This application was summarily refused by the Munsif on the ground that he did not believe that the purchase made by him was a bona fide one. The opposite party, therefore, preferred an appeal, but before the appeal came on for hearing the holding in dispute was sold in execution of the decree obtained by the petitioner against the tenant. On appeal the learned Subordinate Judge held that the appellant was a purchaser of a portion of the occupancy holding, that his purchase was bona fide and for consideration, and that he was entitled to make the necessary deposit under Section 170, Bengal Tenancy Act. He allowed the appeal and further ordered that as the decrial amount had been deposited the sale should be set aside. I need not decide, in the view I take on other points if the opposite party is entitled to make the deposit as purchaser of a portion of a non- transferable occupancy holding.

(2.) This Rule was obtained on the ground, first, that no appeal lay to the Court of appeal below from the order of the Munsif, and, secondly, that the lower Appellate Court has exercised a jurisdiction not vested in it by law in setting aside the execution-sale in the appeal. With regard to the first ground, it is contended that as the suit was valued at less than Rs. 50 and tried by a Munsif specially empowered under Section 153, Bengal Tenancy Act, no appeal lay either from the decree or from any order passed in execution of that decree. It is also argued that, whether an appeal lay from the decree in the original suit or not, the order which was passed was not an order deciding a question relating to title to land or some interest in land as between parties having conflicting claims thereto with in the meaning of Section 153, Bengal Tenancy Act. With regard to the first branch of this argument I may observe that the decree itself and the pleadings are not on the record and so there is no proof whether in the rent suit any such question was not raised which would make the decree appealable under the proviso to Section 153, Bengal Tenancy Act. With reference to the second branch of the- contention, I hold that the order appealed from must decide, irrespective of the character of the suit, a question of conflicting title in order to be open to appeal. For the purpose of this case I will assume that the decree was passed in a suit in which such a question was raised as to make it appeal able. The question, therefore, remains as to whether any order" passed in the execution of such a decree would by virtue of the decree being appeal able be also appeal able, whether it does or not decide any question of conflicting title. There is no authority directly in point; but it is evident from an examination of a number of cases which have dealt with this point that the law at present must be taken to be that the order passed in execution must itself decide in order to be appeal able a question relating to title to land or to some interest in land as between parties having conflicting claims thereto. This point was considered in the ease of Ganga Gharan Bhattacharjee V/s. Soshibushan Boy 32 C. 572 : 1 C.L.J. 255, where it was laid down by Maclean, G.J., that in deciding whether an order is appealable under Section 153, Bengal Tenancy Act, the point for consideration is not what the decree in the suit decided but what the order decided. This view was approved by a Full Bench, of this Court in the case of Kali Mondal V/s. Bamsarbaswa Ghakrabarty 32 C. 957 : 9 C.W.N. 721 : 1 C.L.J. 476 (F.B.). The result of this Full Bench decision was the addition to Section 153, Bengal Tenancy Act, of the explanation by the Amending Act of 1907 which virtually nullified the effect of the decision of the Full Benoh. The point which was decided in Qanga Gharan Bhattacharya V/s. Sashibhusan Boy 32 C. 572 : 1 C.L.J. 255, however, remained undisturbed; and it has further been held that the Explanation added to Section 153 has not superseded the entire decision of the Full Bench in the case of Kali Mondal V/s. Bam Sarbaswa Ghakrabarty 32 C. 957 : 9 C.W.N. 721 : 1 C.L.J. 476 (F.B.). See the cases of Benimadhub V/s. Buweswar 15 Ind. Cas. 486 : 17 C.W.N. 84 : 16 C.L.J. 542, Nobin Chandra V/s. Bipin Chandra 29 Ind. Cas. 303 : 19 C.W.N. 983 : 22 C.L.J. 244. Eeference may in this connection be made to the case of Prafulla Krishna Deb V/s. Nasibunnessa Bibi 87 Ind. Cas. 425 : 24 C.L.J. 881 decided by a Special Bench. There the order was passed by a District Judge and the amount claimed in the suit did not exceed Rs. 100 but the order did not decide any question relating to title to land. In these circumstances, the Special Bench held that the order was not appealable. This decision is attempted to be construed as laying down two conditions of the non-appealability of an order; first, that the suit must be one in which no appeal can lie under Section 153, Bengal Tenancy Act; and, secondly, that the order must decide a question of title. I do not agree that both , these conditions must be satisfied. In that particular case both the circumstances existed and both are referred to.

(3.) It is further maintained by the learned Vakil for the opposite party that where the suit is such in which an appeal would lie under Section 153, Bengal Tenancy Act, any order passed in execution, whether such order decides a question of title or not should be appeal able. No authority has been placed before me in support of this very broad proposition. The section is not confined to decrees only but makes an order that has decided a question relating to title to land or some interest in land as between parties having conflicting claims thereto appealable. The words "has decided a question relating to title, of qualify both decree and order. I am, therefore, of opinion that an order passed in execution of a decree in which an appeal lies from the decree or not, must be an order deciding a question relating to title or some interest in land as between parties having conflicting claims thereto.