JAINANDAN RAM TEWARI Vs. RURIA URAON

JUDGEMENT

(1.) This matter comes before this Bench by reference from a single Judge. The facts briefly are that on 17 December 1931 respondents 4 and 5 brought the holding of respondents 1-3 to sale under Section 208, Chota Nagpur Tenancy Act, and the holding was purchased by the appellant. The 16 January 1932 was the last day for making a deposit under Section 212, Chota Nagpur Tenancy Act, but respondent 2 came forward on 18 January 1932 with the amount due. The rent suit Deputy Collector, in spite of the expiry of the statutory period, accepted the amount and set aside the sale. The appellant accordingly filed the present suit for a declaration that the order of the Deputy Collector setting aside the sale was without jurisdiction and void, for a declaration that his own purchase of the holding was valid and subsisting, and for a permanent injunction restraining respondents 1-3 from interfering with his possession; he also asked that if respondents 1-3 were found to be in possession of the holding he should be restored to possession by evicting those respondents therefrom. Both the first Court and the first appellate Court held that the order of the rent suit Deputy Collector setting aside the sale was ultra vires, but they also held that the suit was barred under Section 214(b), Tenancy Act. The appellant has therefore filed this second appeal. For the appellant Mr. K.K. Banerji has argued that the order passed by the Deputy Collector was not an order under Section 212. He relies on Lachmi Ojha Vs. Ram Ran Bijay Prasad Singh 1984 Pat 336, in which case a deposit was made within the statutory period but was afterwards found to be in deficit to the extent of twelve annas. It was held that in these circumstances the order setting aside the sale was invalid, and Macpherson, J. observed: If the period of 30 days from the date of sale allowed by Section 174, Ben. Ten. Act, and by Order 21, Rule 89 to the judgment-debtor for making the deposit in Court can be extended at all, it is only when the judgment-debtor has established that he has made a mistake and that mistake is directly due to an act of the Court itself.

(2.) Section 174, Ben. Ten. Act, is analogous to Section 212, Chota Nagpur Tenancy Act, and on the strength of this authority I must hold that the order setting aside the sale in this case was ultra vires. It is true that Section 214(b) purports to bar a suit to set aside an order passed under Section 212, but the application of Section 212 is confined to the statutory period of 30 days, and a Court passing an invalid order after that period cannot be said to be acting under that section. In the reference to this Court it is pointed out that whereas Section 214(a), Chota Nagpur Tenancy Act, makes an exception in the case of a suit brought on the ground of fraud or want of jurisdiction, no such exception is made in the case of Section 214(b). Whatever may be the reason for this omission which is probably due to a faulty amendment of Section 214 by the Amendment Act of the year 1920, I do not see how it can affect the argument set forth above, or how Section 214(b) constitutes a bar to the inherent right of the civil Court to set aside a decree or order obtained by fraud or passed without jurisdiction. This right is also expressly recognized in Section 258, Chota Nagpur Tenancy Act, in relation to orders and decrees passed under that Act, including order passed under Ch. 16, which includes Section 212. In Rameshwar Narain Singh V/s. Mahabir Prasad 1926 Pat 401, a case-under Section 231, Chota Nagpur Tenancy Act, Dawson Miller, C.J. observed: The right to sue for the possession of land and the right to ask for a declaration that a sale has been fraudulently confirmed are not rights, arising under the Chota Nagpur Tenancy Act. It is true that the Act in some cases takes away the right to sue for setting aside a sale, but it nowhere grants that right although to some, extent it limits it.

(3.) In the present case I must hold that the order passed by the Deputy Collector was without jurisdiction and was not an order passed under Section 212 of the Act, and that the appellant had his remedy in the civil Court. I would therefore allow this appeal and set aside the order of both the Courts below and decree the appellant's suit in full. The appellant is, allowed his costs in the Courts below, but there will be no costs in this Court in which the respondents have not appeared. Agarwala, J.