HARIPADA HALDAR Vs. BARADA PRASAD ROY CHOWDHURY

JUDGEMENT

(1.) This appeal is directed against an order of the 2nd Additional District Judge of the 24- Parganas confirming the order of the Munsif, 4 Court, Diamond Harbour, dismissing an application for setting aside a sale in execution of a rent decree. The judgment-debtor applicants, now appellants, with a large number of co-sharers held under the decree-holder, Barada Prasad Roy Chowdhury, a chak comprising an area of 147 bighas bearing a yearly rental of Rs. 183-12. The said Barada Prasad sued the tenants, the applicants, and their co- sharers for arrears of rent and obtained a decree on the 28 August 1917. The decree was in due course put into execution on the 18 January 1918 and the chak in default being put up to sale was purchased by one Jadu Nath Sarma on the,2 July, 1918. The judgment-debtor Haripada and others then applied to have the sale set aside and assailed both the decree and the sale on various grounds. One of the points for determination was whether the application was barred by limitation, an the finding of the Munsif was that the case was governed by Art. 166 of the Limitation Act, and that the application was time-barred, and "he accordingly dismissed it with costs. On appeal, the learned Additional District Judge confirmed the decision of the Munsif holding that Art. 166 and not Art. 181 was applicable to the case, and dismissed the appeal with costs. The judgment-debtors, Haripada Haldar and others, then filed this Second Appeal.

(2.) A preliminary objection has beet taken on behalf of the respondents to the hearing of the appeal first, on the ground that insofar as the application was one under Section 173 of the Bengal Tenancy Act, no appeal lies either in this Court, or in the Court of first appeal; and secondly, that the appeal is not competent by reason of non-joinder of parties, the heirs and legal representatives of one of the respondents (No. 10) Ananda Charan Haldar, not having been brought on the record. We do not think it is necessary to go into these matters because we are satisfied that the appeal fails upon the merits. On the merits the sole point for determination is whether the Courts below have rightly held that the application was barred by limitation. The execution sale took place on the 2 July, 1918 and the application for setting aside the sale was made in August 1920, i.e., some 2 years later. Under Art. 166 the period of limitation is 30 days, whereas under Art. 181 it is three years. If the former is applicable, the application was clearly time-barred, while if Art. 181 applies it was within time. In our judgment the Courts below have rightly held that the case is governed by Art. 166. The rulings which have been referred to in support of the contrary view--Chand Moni Dasya v. Santa Moni Dasya (1897) 1 G.W.N. 534 and Chan drama Mai V/s. Maharaja of Dumraon (1916) 38 Ind. Cas. 209--were decided under the Act as it formerly stood before the passing of the present Limitation Act when Art. 166 was restricted to a particular class of applications. That article as now worded is very much wider and is quite general in its terms, governing all applications to have an execution sale set aside. Indeed, it is arguable having regard to the extremely wide wording of the Art. that it covers the case applications made under Section 173 of the Bengal Tenancy Act. But be that as it may, it is clear that an application under Section 173, Bengal Tenancy Act, is cognizable under Section 47, Civil P. C., (see Chand Mani Dasya V/s. Santa Moni Dasya (1897) 1 C.W.N. 534, relating to Section 244 of the old Civil Procedure Code), and that being so the operation of Art. 166 will be attracted. This view accords moreover with the fitness of things as it is manifestly anomalous that the period of limitation for setting aside a sale under the Bengal Tenancy Act should be so long as three years, whereas under the Civil P. C. it is only 30 days. As pointed out in Satish Chandra Kanungoe V/s. Nishi Chandra Dutta (1919) I.L.R. 46 Calc. 975, the policy of the Legislature appears to be that questions arising in execution should be brought before the Courts and decided with the least possible delay. In the present instance nearly two years elapsed before the application was made.

(3.) For the reasons stated, the appeal in our judgment fails and must be dismissed with costs. We assess the hearing fee at two gold mohurs.