JAHIR MANDAL Vs. RANI RADHA RANGINI DEVI

JUDGEMENT

(1.) This rule was obtained by the judgment-debtor in a decree for rent which was obtained by the opposite party for les3 than Rs. 50. The holding of the petitioner was sold for Rs. 34 and it was purchased by the decree-holder. The sale took place in the year 1916. The application for setting aside the sale was made in the year 1926. It was alleged that the petitioner was kept from the knowledge of his right to make the application for setting aside the sale by the fraud of the opposite party and, therefore, the petitioner was entitled to extension of time for making the application ?under Section 18, Lim. Act. It was alleged that the sale was vitiated on the ground of non-service of process and fraud and inadequacy of price. It was opposed by some only of the opposite parties. The points argued before the Munsiff were (1) whether the application was barred by limitation, (2) whether the sale was liable to be set aside on account of supression of process of attachment and sale proclamation or for irregularities in publishing and conducting the same or on account of fraud, (3) whether the sale was bad for inadequacy of price. The learned Munsiff held that the petitioner was entitled to the benefit of Section 18, Lim. Act and, therefore, the application was not barred by limitation. The learned Munsiff next dealt with the question as to the irregularities and his findings are expressed in these words: To my mind notices under Order 21, Rule 66, Civil P.C., were all suppressed and not served. The absence of such notices is a material irregularity vitiating the sale. The proclamation of sale is blank. It does not contain the name of the place, the date of sale and the amount of the decree nor the value of the land to be sold. Everything was done in a hurry. The provisions of Order 21, Rule 66 were not at all complied with. These irregularities in publishing that sale are material irregularities vitiating the sale. To my mind the proclamation of sale was also suppressed with fraudulent motive.

(2.) He then found that Darbesh Sarkar the Tahsildar of the landlord was after all these lands and seemed to have been a party to the fraud with a sinister motive to get hold of the land; and he found afterwards that it was this Darbesh who took settlement from the landlord of the lands in question after the auction sale and he himself personally was eager to get hold of the lands. Upon these findings the sale was set aside. On appeal by the decree-holder the Subordinate Judge held that the application was barred by limitation and in that view the Subordinate Judge did not deal with the other questions relating to the irregularities mentioned by the Munsiff in his judgment. A second appeal was preferred against the decision of the Subordinate Judge by the petitioner which was dismissed on the preliminary objection taken by the opposite party. In the alternative the petitioner obtained this Rule,

(3.) The only ground that has been urged before us is that there was no appeal from the decision of the Munsiff to the Subordinate Judge having regard to the provisions of Section 153, Ben. Ten. Act. The Munsiff we are told was empowered to deal with these matters finally under the provisions of Section 153, Ben. Ten. Act, and, therefore, no appeal lay. It was contended on behalf of the opposite party that as the Munaiff found that there was fraud an appeal to the Subordinate Judge was competent, and in support of this contention the opposite party relies upon the Full Bench case of Kali Mandal V/s. Ramsarbaswa Chakravarti [1905] 32 Cal. 957. In that case the question put to the Full Bench was whether an appeal lay from an order setting aside a sale or declining to set aside a sale in execution of a decree for rent, as there was no appeal from the decree in the suit on account; of the prohibition contained in Section 153, Ben. Ten. Act. Maclean, C.J., in his judgment in that case in answer to the question put to the Full Bench relied upon the opinion expressed by himself in the previous case of Ganga Gharan V/s. Sashi Bhusan [1905] 32 Cal. 572. In the earlier case of Ganga Gharan V/s. Sashi Bhusan [1905] 32 Cal. 572 as well as in the later case the question was whether the sale was vitiated on the ground of irregularity in publishing or conducting the sale. Maclean, C.J., was of opinion that In deciding this the Court has to go into the question of conflicting title. As he put the matter in the case of Ganga Charan V/s. Sashi Bhusan [1905] 32 Cal. 572: The opposite party says : This is my land because the sale to me is a good sale. The petitioner says: It is my land because the sale to you is a bad one; and that was the question which was decided by the order which was in appeal to the Additional District Judge.