HARI NATH DAS Vs. CHANDRA KANTA SARDAR

JUDGEMENT

(1.) THE facts which have given rise to the present Rule were these. THE decree-holder, petitioner, in execution of a decree for rent purchased the land in arrears, THE sale took place on 19 September 1932 and it was confirmed on 4 November 1932. On 7 November 1932 there was an application for delivery of possession and possession was delivered on 21st December 1932. A day before this date, namely, on 20 December 1932, one of the judgment-debtors, namely, Chandra Kanta Sardar, filed an application under Section 174, Ben. Ten. Act, and Section 47, Civil P. C., for setting aside the sale. A Miscellaneous Case, namely, Case No. 120 of 1932 was started. This case was adjourned several times and on 27 May 1933, there was a compromise petition filed by both the parties to the effect that if the judgment-debtor paid the total dues to the decree-holder auction-purchaser before 27th August 1933,. the sale would be set aside and in default the petition for setting aside the sale would be dismissed and the sale would stand, and on this condition three months time was allowed and the case was fixed for 28 August 1933 for disposal in terms of the petition of compromise filed by both the parties. THE judgment-debtor did not pay off the dues within the time fixed in the compromise petition and prayed for further time for payment. This prayer for further time was opposed by the decree-holder. This opposition however was overruled and the learned Subordinate Judge set aside the compromise on the ground that the compromise had been obtained by coercion and ordered that the Misc. Case No. 120 of 1932 petition should be tried on its merits. It is against these orders of the learned Subordinate Judge that the present Rule is directed.

(2.) THE Rule, in my opinion, must be discharged. THE order, complained of, was either an interlocutory order or an order that was final. If it was an interlocutory order it cannot very well come within the purview of Section 115 of the Code. If it is a final order the petitioner had another remedy, namely, of an appeal. An attempt was made to show that no appeal lay. But from what I have stated above it would appear that the application for setting aside the sale was made under Section 47, Civil P. C, and therefore there was a remedy of an appeal open to the petitioner. In this connexion reference was made to a decision of the Patna High Court in the case of Jagdis Missir V/s. Sureswar Missir AIR 1921 Pat 107 where it has been held that the provisions of Order 23, Civil P. C., do apply to an order made on an application for setting aside a sale. On behalf of the petitioner it was said that the learned Subordinate Judge ought to have given effect to the petition of compromise filed by the parties and the petitioner's real grievance therefore was that the learned Judge did not give effect to that petition. If that was so, the order complained of, was in controvention of the proveaisions of Order 23, Rule 3, Civil P. G. An order passed in contravention of that Rule is clearly an order which is appealable under Order 43, Rule 1, Sub-Rule (m). THE result is that this Rule is discharged with costs the hearing-fea being assessed at one gold mohur.