BISWANATH RAI Vs. MANIK SARDAR

JUDGEMENT

(1.) The question involved in this Rule is whether the petitioner "before me has the right to deposit the decretal amount with compensation under the provisions of either Section 174, Sub- Section (1) of the Bengal Tenancy Act or Order XXI, Rule 89 of the Code of Civil Procedure and thereby to set aside the Court sale.

(2.) These facts are admitted. Four persons, namely, Biswanath Rai (petitioner), Santosh Tikadar, (now dead), father of opposite parties Nos. 3 and 4, Estambar Tikadar and Ghatak Chandra Tikadar (husbands of opposite parties Nos. 5 and 6 respectively) held some lands as under-ryots. Sixteen bighas out of these were held under them by Mauik Sardar (opposite party No. 1). Manik was accordingly an under-ryots of the second degree. Under Manik, Biswanath Rai (petitioner) is a tenant in. respect of 41 bighas of land. He is; therefore, ail under-ryot, of the third degree. In the locality there is, no custom by which underryots can acquire occupancy rights. Biswanath and Sasi Bhusan instituted in the year 1931 a suit against Manik Sardar for recovery of arrears of rent making Estatnbar and Ghatak pro forma defendants. They recovered a decree on December 7, 1931. On June 26, 1933, the said decree was put into execution and the lands com prised in the tenancy of Manik were put up to sale and purchased by opposite parties Nos. 5 and 6 on September 16, 1933. Bis wanath Rai in his character as a sub-tenant of Manik Sardar deposited is Court the decretal amount with compensation on October 23, 1933, (the date when the Civil Court re-opened) and applied to set aside the sale under the provisions of Section 174(1) of the Bengal Tenancy Act, in the alternative under Order XXI, Rule 89 of the Civil P. C.. Both the Courts below have held that he has no locus standi to make the said deposit. It is admitted that if his interest as sub-tenant of Manik Sardar is affected by said sale he has the right otherwise not, The ultimate question, therefore, depends upon the effect of the aforesaid sale. If it has the effect of a sale under the special procedure of Chap. XIV of the Bengal Tenancy Act, the auction purchaser would have the right to annul the interest of the petitioner and he would have accordingly the right to make the deposit. If, however, the sale only passed the right, title and interest of Manik, he would have no such right.

(3.) Section 158-B states that where "a tenure or holding" is sold in execution of a decree for arrears of rent due in respect thereof, the tenure or holding shall pass to the purchaser, not merely the right, title and interest of the judgment-debtor Section 159 states: where the tenure of holding is sold in execution of a decree for arrears due in respect thereof the purchaser shall take?with power to annul the interest defined as encumbrances.