SIR KAMESHWAR SINGH Vs. BISHWANATH JHA

JUDGEMENT

(1.) This is a second appeal arising out of a proceeding under Order 21, Rule 90. The appellant is the decree-holder and the respondents are the tenants of a certain holding. In execution of a decree for rent, the holding belonging to the tenants was sold on 10 January 1942, and the sale was confirmed on 12th February 1942. On 8 August 1942, some of the respondents made an application under Order 21, Rule 90 Civil P.C., alleging that the sale was vitiated by fraud and certain irregularities in the execution proceedings and the land was sold at a very inadequate value on account of the alleged fraud and irregularities.

(2.) Both the Courts below have concurrently found that none of the execution processes was served and the land was sold for grossly inadequate value. The lower appellate Court found that upon the evidence fraud in the matter of the publication of the sale processes was not established and therefore no relief could be granted to the tenants under Order 21, Rule 90. Nevertheless, that Court found that no notice having been served under Order 21, Rule 90, the executing Court had no jurisdiction to sell the property and therefore the sale was without jurisdiction. If the matter was governed by Order 21, Rule 90, the limitation for an application to set aside the sale would have been thirty days from the date of the sale. In the present case the application was made more than thirty days after the sale, but the lower appellate Court pointed out that the period of limitation would be different when the matter was governed by Section 47, Civil P.C., and not by Order 21, Rule 90. Being dissatisfied with the order of the lower appellate Court the landlord has preferred this appeal.

(3.) The appeal is liable to be dismissed on the preliminary ground that no second appeal lies in the present case under Section 153, Bihar Tenancy Act. The point has been decided by a Division Bench of this Court in Ajodhya V/s. Kameshwar Singh A.I.R. 1945 Pat. 288 and the grounds for the decision are fully set out in the report of that case. The learned Advocate for the appellant concedes that no appeal lies but prays that his memorandum of appeal may be treated as an application for revision. In my opinion, however, this prayer should not be granted, because here is no merit in the application. It is contended that the order of the lower appellate Court is erroneous in law because the execution proceedings were started after the amendment of Section 148, Bihar Tenancy Act and under the new section notice under Order 21, Rule 22 is not necessary in an execution proceeding arising out of a rent suit but the clearest reply to this argument is that Section 158B, Clause (2) is a provision which is similar to Order 21, Rule 22 and it has been found by the Courts below that no notice under Section 158B, Clause (2) was served in the present case. Section 158B Clause (2) runs as follows: When the application mentioned in Section 158A is made and the decree-holder wants to proceed against the tenure or holding or portion of the tenure or holding in respect of which the decree was obtained, the Court executing the decree shall, before proceeding, to sell the tenure or the holding, or a part of the holding, give to the parties to the decree notice of the application and of the date on which the sale proclamation shall be drawn up, and may, notwithstanding anything contained in the Cod of Civil Procedure, 1908, simultaneously issue attachment.