SUKHOO SAO Vs. SITA RAM HAJJAM

JUDGEMENT

(1.) This is an application in revision against an order of the Munsif of Patna refusing to set aside a sale under Section 174, Bengal Tenancy Act. The application was originally heard by Mohamad Noor, J. sitting singly and he referred it to a Division Bench and it has ultimately come over to this Bench. The reason why the learned Judge referred it to the Division Bench was that a certain conflict of opinion appeared to exist between two points of view--the one represented by a judgment of Rowland, J. in Hanuman Singh V/s. Baijnath Prasad Singh A.I.R.1937. Pat. 687 and the other represented by a later decision of Manohar Lall, J. in Mohammad Zakiruddin V/s. Mohammad Naeem A.I.R.1987.Pat 635.

(2.) The facts are simply stated. After a sale and within thirty days of the sale, the decree-holder and the judgment-debtor certified to the Court that the decree had been satisfied and fully paid and the ijaradars deposited five per cent, of the purchase money for payment to the auction-purchaser and asked that the sale be set aside. It was contended by the auction purchaser that the provisions of Section 174 had not been fulfilled, and that it was necessary for the judgment, debtor, notwithstanding any satisfaction of the decree which may have taken place, to deposit the amount of the decretal debt in Court for the benefit of the decree holder (whether or not the decree-holder could afterwards take it out or not) in addition to depositing the five percent of the purchase money. On the other hand, it was contended that there had been a substantial compliance of Section 174 and the question before the Court is as to whether in the circumstances the section has been complied with. We have carefully read the two judgments in question in which numerous prior decisions have been dealt with and we desire merely to say that we are in full agreement with the judgment of Manohar Lall, J. that in such circumstances the section has been complied with and the Munsif should have set aside the sale. It is unnecessary to review the authorities because Manohar Lall, J. has already done so in his judgment and we think correctly. In the result the application in revision will be allowed and the sale will be set aside and the auction purchaser must pay the costs throughout; hearing fee three gold mohurs.

(3.) It would appear that the petitioners who were ijaradars of a portion of the holding sold, also lodged an appeal before the District Judge. The District Judge felt himself bound by the authority of the judgment of Boss, J. in Raghunandan Pandey V/s. Garju Mandal A.I.R1925.. Pat 525 and dismissed the appeal for that reason. He however also might properly have come to the conclusion that no appeal lay, and it is not argued before us that any appeal does lie in law from the order of the Munsif being the matter in revision only.