BAIDYA NATH PANDEY Vs. HEMLATA DASI

JUDGEMENT

(1.) The question raised in this rule is whether the petitioners had the right to apply under Section 174, Clause (1) Ben. Ten. Act, for setting aside a rent sale. The facts are not disputed and the question raised before me is a pure question of law and on that the question of jurisdiction of the lower Courts depends. Both the lower Courts have held that the petitioners have no locus standi to make and maintain the said application.

(2.) The petitioners before me obtained a mortgage decree against opposite parties Nos. 8 to 10. The preliminary decree was passed on 5 January 1933 and the final decree was passed thereafter. On 6 January 1933 the petitioners made an application for attachment before judgment of some properties belonging to opposite parties Nos. 8 to 10 other than properties included in the mortgage and covered by the preliminary mortgagedecree. The statement in that application was that they obtained a preliminary mortgage decree a day previously and there was no chance of the whole amount decreed being recovered by sale of the mortgage properties. They accordingly wanted an attachment of properties other than properties included in the mortgage, in order that they might be secured so far as their personal decree was concerned, a decree which they expected to get.

(3.) The notice was issued upon the opposite parties Nos. 8 to 10 to show cause why the said properties should not be attached before judgment. On 20 February 1934 the final order attaching the said properties before judgment was made. One of the properties so attached is the subject--matter of the present rule. Opposite parties Nos. 1 to 7, viz., the Banerjees and Roy Choudhuris who were the landlords of opposite parties Nos. 8 to 10 the Mitters, instituted a suit to recover rent and obtained a decree. They put up the rent decree into execution and a sale was held under the provisions of Chap. 14, Ben. Ten. Act, on 19 June 1934 and the opposite party No. 11 Balaram purchased the defaulting tenure. He only appears in this Rule and opposes it. On 17 July 1934 the petitioners applied under Section 174 (1) to set aside the rent sale by making the necessary deposit. On 11 September 1934 they made an application in their mortgage suit for a personal decree under the provisions of Order 34, Rule 6, Civil P. C., but the proceeding started in that application was stayed by an order dated 13th November 1934. It is admitted that no personal decree has yet been passed against opposite parties Nos. 8 to 10 and in favour of the petitioners.