SASADHAR CHOUDHURY Vs. BISHNU NARAIN KUNDA

JUDGEMENT

(1.) The question arising on this Rule is a proper one to be decided on revision. One Mahendra was a patnidar, and he was sued for rent by three persons who added as pro forma defendants two others as being co-sharer landlords with the plaintiffs. Decree was obtained and this decree was put in execution by the procedure laid down in Ch. XIV of the Bengal Tenancy Act as distinct from the procedure of the Code. At the sale on 12 May 1924 the present applicant became the purchaser for a price of Rs. 1,375 He now says that a relation of his had purchased Mahendra's interest in 1922 at a sale under a mortgage-decree and that he has discovered that in the rent suit two other co-sharer landlords were not parties, with the result that the decree was not such a decree as is contemplated in Ch. XIV. Accordingly, he says the sale of 1924 passed to him only the right, title and interest of Mahendra and took effect only as a sale under a money decree. As the whole of Mahendra's interest was transferred by the mortgage sale of 1922 the applicant claims under Order XXI, Rule 91 to have the sale set aside and his chase-money refunded.

(2.) This contention has been negatived by the Munsif at Katwa and the District Judge of Burdwan on the ground that Section 174, Sub-section 3 of the Bengal Tenancy Act provides that "s. 313 of the C.P.C. shall not apply to any sale under this Chapter." The Courts below have accordingly refused to enter into the contest between the petitioner and the opposite parties as to whether Mahendra's landlords were five or seven in number whether his patni was held under an 8-annas share of the zemindari or under the 16-annas and so forth, and they have dismissed his application. They take the view that whether or not the decree was in strictness a rent decree so as to pass to an auction-purchaser the tenure itself or so as to give a charge to the landlords in terms of Section 65 of the Bengal Tenancy Act, the sale of 12th May 1924 was held under Ch. XIV. Thus notices were issued to co-sharer landlords under Section 158B, the proclamation of sale was under Section 163 issued simultaneously with the order of attachment and contained the particulars required by Clause (a) of Sub-section 2. This in their opinion ends the matter as Section 174 sub Section 3 applies.

(3.) The learned Vakil for the applicant contends that Ch. XIV of the Bengal Tenancy-Act has no application except upon the basis of a rent decree and that the absence of this basis has the effect of giving to the auction-purchaser the ordinary rights of an auction purchaser under the Code, and of rendering inapplicable the special restriction imposed by Section 174 sub Section 3. He cites as illustrating the principles to be applied Durga Charan Mandal V/s. Kali Prasanna Sarkar 26 C. 727 : 3 C.W.N. 586 : 13 Ind. Dec. (N.S.) 1064 and Sadagar Sircar v. Krishna Chandra Nath 26 C. 937 : 3 C.W.N. 742 : 13 Ind. Dec. (N.S.) 1199. He also cites Makar Ali V/s. Sarfaddin 70 Ind. Cas. 606 : 36 C.L.J. 132 : 50 C. 115 : 27 C.W.N. 183 : A.I.R. 1923 Cal. 85 as showing that Section 313 of the Code of 1882 did not exclude an auction- purchaeer from seeking the like remedy by suit and that under the present Code the remedy by suit has been taken away.