NANDA KUMAR PANDE Vs. SOURENDRA NATH GHOSE

JUDGEMENT

(1.) The petitioner before me is the auction-purchaser of a patni sold under the provisions of Regn. 8 of 1819. The only question involved in this rule is whether the learned Subordinate Judge, to whom a reference was made by the Collector under Section 14-A, Clause 5, of the Patni Regulation, was justified in setting aside the sale under the provisions of Section 14-A of the said regulation. The opposite party 1 who was the patnidar defaulted in paying the patni rent for the year 1341 B.S. The Mukherjees who are the zamindars, through their manager, their estate being under the charge of the Court of Wards, applied to the Collector for sale under the Regulation on 16 April 1935. In the said application the claim made on behalf of the zamindars was laid at Rs. 527-15-5 gds. On 15 May 1935 the Collector held the sale and at that sale the petitioner purchased the patni. On 13 June 1935 the defaulting patnidar deposited the sum of Rs. 560-15-5 gds. in the Collectorate for enabling him to set aside the sale under the provisions of Section 14-A of the said Regulation. The auction-purchaser having opposed his prayer the Collector made a reference to the learned Subordinate Judge.

(2.) It is admitted that the deposit made by the defaulting patnidar has fallen short by a certain amount, namely the amount due on account of interest from the date of the sale to the date of deposit. Having regard to my decision in the case of Jotindra Mohan Chaudhury v. Bridhi Deyee Bibi (1935) 39 C W N 516 which has since been approved by a Division Bench in Civil Revision No. 934 of 1934 decided on 24 May 1935, it is conceded by the opposite party 1, that the above mentioned shortage in the amount deposited would ordinarily be fatal to his prayer for setting aside the sale, but it is contended on his behalf that as the zamindar has consented to the sale being set aside, it should be held otherwise. To be more precise the argument is that the deposit required under Clause (b) of Section 14-A being intended for the benefit of the zamindar it is open to the zamindar to waive the requirements of the said clause, and as in fact he has waived the same by giving his consent to the sale being set aside, the Court should ignore the deficiency in the amount deposited. On the application which was made on 13 June 1935 by the defaulting patnidar to the Collector for setting aside an authorized agent of the zamindars made an endorsement to the following effect: "I have no objection to the sale being set aside. D.N. Roy Chaudhury, R.A. for zamindars."

(3.) The learned Subordinate Judge distinguished Jotindra Mohan Chaudhury V/s. Bridhi Deyee Bibi (1935) 39 C W N 516, on the ground that the zamindar had not in that case "consented in writing" to the sale being set aside. No doubt in that case the zamindar had not consented in writing, but in this Court his advocate had in fact said that he had no objection to the sale being set aside. The learned Subordinate Judge has dealt with the case before him in the following way. I quote the words: It is true that the interest up to date of deposit (from the date of sale) has not been deposited. But this amount was required to be paid for payment to the zamindar. If the zamindar says that he got the amount either expressly or impliedly I think that the non payment of the amount in Court would not matter. If it had been deposited, the zamindar would have taken it. If the zamindar says that he has got it that is enough compliance with the provisions of Section 14-A of the Patni Regulation. The zamindar by giving his consent to the sale being set aside said in substance that all payments required to be made for setting aside of the sale have been made.