RAMPADA NAG MADAK Vs. KANAI RAI

JUDGEMENT

(1.) The facts of the case are that the decree-holder obtained in 1917 a decree for rent against four persons who were tenants of the holding in respect of which the rent suit; was brought. One of the judgment-debtors, Protap Roy, died in 1921. Execution of the decree was taken out in. 1923 against all the judgment-debtors including Protap Roy and on 12 July 1923 notices under Order 21, Rule 22, Civil P.C., were issued and subsequently served, it was alleged, on all the judgment-debtors including Protap Roy. The holding was put to sale and purchased by a third party on 8 October 1923. On 7 June 1924 the respondent, heir of Protap Roy, filed an-application for setting aside the sale, purporting to be under Order 21, Rule 90, Civil P.C., on the ground (1). that the sale proclamation and other processes were fraudulently suppressed; (2) that Protap Roy having died long before the execution proceedings were started and no substitution having been made in his place the sale was a nullity. The Munsif in the first Court held that the sale was not a nullity, but it did not affect the interest of the deceased judgment-debtor. In this view the learned Munsiff further held that as the sale did not affect the interest of the applicant he was not a person entitled to apply under Order 21, Rule 90. He also held that the application was time barred and dismissed it. On the merits he was of opinion that there was no suppression of sale processes, but he did not consider the matter in detail in the view he took on the other points. The respondent appealed and the District Judge of Bankura held that Protap Roy having died before execution was taken out the sale was without jurisdiction, and set it aside.

(2.) The decree-holder has appealed and it is contended on his behalf that the view of law taken by the Court of appeal below is erroneous. A preliminary objection is taken on behalf of the respondent, that no second appeal lies as the application was one under Order 21, Rule 90. I am of opinion that the question now under consideration can only be raised under Section 47, Civil P.C., and not under Order 21, Rule 90; and hence a second appeal lies: see Rasaraja V/s. Prasanna Kumar Roy [1913] 40 Cal. 45.

(3.) On the main question it is said that the sale cannot be partially set aside. There is ample authority that this can be done: Khiarajmal V/s. Daim [1905] 32 Cal. 296; Rajagopala Ayyar v. Ramanuja Chariar A.I.R. 1921 Mad. 431. The question that next falls for consideration is whether the sale passed the entire holding or the interest of only the surviving judgment- debtors or nothing. The appellant faintly attempts to put his case high and argues that the decree being a rent decree under the Bengal Tenancy Act, the sale in pursuance of it passes the entire holding. The respondent argues on the same theory that the sale in execution of a rent decree passes the entire holding if valid or nothing if invalid. There is no authority in support of either view. It is true that a rent decree under the Tenancy Act is binding on the holding and a charge upon it, but the execution of the decree must be levied on the holding and the holding is represented by the entire body of tenants. The Act is silent as regards the execution of a rent decree against some of the tenants, but it provides for the execution of a rent decree as such at the instance of a co-sharer landlord under Section 158-B, It may be argued that that section presumes that the execution is take out against all the tenants though by one or some of the landlords, for if the tenancy law desired to make any departure from the general law in matters of execution relating to judgment-debtors some provision in that respect might be expected to find a place in the Act. As a suit for rent is brought under the general law and not in virtue of a right conferred by the Bengal Tenancy Act, so the execution is also taken out under the general law to which special effect is attached by the Act if it is carried in accordance with its provisions. If one of the landlords sells the holding in execution of a rent decree without observing the procedure laid down in Section 158-B, he sells not the holding but the right, title and interest of the judgment-debtor in it, so if the landlord takes out execution of a rent decree against some of the tenants he sells their interest only, but not the holding which is represented by the entire body of tenants; for the efficacy of a rent decree must be the same whether it is executed by one of the decree- holders or against one of the judgment-debtors.