HAFEZ UZIR ALI Vs. NASIMANNESSA BIBI

JUDGEMENT

(1.) This is an appeal by the decree-holder against the order of the Additional District Judge of 24 parganas, affirming an order by the Munsif refusing the application of the decree-holder for setting aside a sale. The short history of the case is that the decree-holder brought a suit against the judgment-debtors in order to establish his niskar right to 7 1/2 bighas of land in which the judgment-debtors were alleged to have a tenancy right. That suit declaring the lakheraj right of the decree-holder was decreed as against the judgment-debtor. A certain sum of money was allowed to the decree-holder for costs. In execution of the decree for costs the decree-holder purported to sell the interest of the judgment-debtors in the property in question, that is to say the tenancy under the decree-holder's lakheraj interest. In the schedule annexed to the execution petition the property was described as the darbust hakuk of the judgment-debtors under the petty niskar No. 488. The learned Munsif found that it was obvious that the words "tenancy right of the judgment-debtors in petty niskar 488" were omitted and there was no doubt that the omission was accidental. The learned Munsif was of opinion, and there is no reason why that opinion should not be held to be absolutely right, that it was absurd to suppose that the decree-holder wanted to attach and put up to sale his own niskar property. The auction purchaser took the attitude in the trial Court that he had purchased the niskar interest of the judgment-debtors, and in the view that the judgment- debtors had no niskar interest the Munsif held that the decree-holder has suffered no loss and, therefore, his application should not be granted. It seems that if in his opinion the decree- holder was liable to suffer loss he would have interfered under the provisions of Section 151, Civil P.C. From his order dismissing the application the decree-holder appealed to the District Judge. On appeal the learned Judge was not satisfied with the reasons given for the alleged mistake having occurred. He held that the petition was verified by the decree-holder himself and he should be bound by it. The investigation into title did not come within the scope of the appeal before him. The learned Judge also held that the application which purported to have been made under Section 47, Civil P.C. was barred under Art. 166, Lim. Act. In that view he dismissed the application.

(2.) With regard to the question of limitation it is sufficient for me to observe that an application under Section 47, Civil P.C. falls within Art. 181, Lim. Act and not under Article 166, of the Act although in the result the applicant asked for setting aside the sale.

(3.) Prom the judgment of the learned Judge the decree-holder has preferred this appeal. A preliminary objection has been taken by the respondents that there is no second appeal. The appellant contends that the application falls within Section 47, Civil P.C., and so the order has the effect of a decree and there is a second appeal. It is contended on behalf of the respondents that the auction-purchaser in this case being a third party S, 47 has no application. This matter has been settled by the Privy Council in the case of Prasanna Kumar Sanyal V/s. Kali Das Sanyal [1892] 19 Cal. 683, that where a question has arisen as to execution, discharge or satisfaction of a decree between the parties to the suit in which the decree was passed the fact that the purchaser who is no party to the suit is interested in the result has never been held a bar to the application of the section. This position has been re- affirmed by their Lordships in the case of Ganapathy Mudaliar V/s. Krishnamachariar A.I.R. 1917 P.C. 121 where their Lordships referred to the, case of Prasanna Kumar Sanyal. Section 47, therefore applies even if a third party is the auction-purchaser where the application falls within the provisions of that.