ASHUTOSH MANDAL Vs. GATI KRISHNA GHOSE

JUDGEMENT

(1.) The petitioners in this case filed an application for setting aside a sale which was held in execution of a rent decree obtained by opposite party 2 against the petitioners and opposite party 4. The grounds alleged in the petition were that the sale processes had been suppressed, that the properties had been sold at an inadequate price and that one of the judgment-debtors, namely opposite party 4, had really purchased the properties in the name of his uncle, opposite party 1. The Munsif dismissed the application whereupon the petitioners preferred an appeal before the District Judge; The latter by his order dated 24 April 1937 dismissed the appeal holding that it was not competent in view of the provisions of Section 153, Ben. Ten. Act.. Against that order the petitioners have obtained this Rule.

(2.) Mr. Das for the petitioners seeks to rest his case on Sub-section (5) of Section 174, Ben. Ten. Act, contending that there is a right of appeal in all cases against an order setting aside or refusing to set aside a sale. He-has however conceded that it is controlled by Section 153. Mr. Das therefore takes up the position that at any rate the learned Judge below ought to have held that the question of benami as alleged by the petitioners has taken the case out of Section 153,. that the matter is one under Sub-section (3) of Section 173 and that an appeal lies under Sub-section (5) of Section 174. There is however no authority for the proposition that the provisions of Sub-section (5) of Section 174 applies to a case falling under Sub- section (3) of Section 173. The juxtaposition of these sub-sections would not bear out such a contention. It may be pointed out that, while Section 173 of the old Act is practically left intact, Section 174 of the old Act is modified and the result is to make a complete provision for applications to set aside a sale, Order 21, Rule 89 or Rule 90, Civil P.C. not being applicable. It seems to me that Sub-section (5) of Section 174 will apply to applications falling under Section 174 and would not apply to applications coming tinder Sub-section (3) of Section 173. At one time Mr. Das sought to argue that, failing the applicability of Section 174 (5) an appeal would lie under Section 47, Civil P.C. But it is conceded that this contention is not sound in view of the fact that the contest in the present case is not between the parties to the suit. The argument in support of the petition therefore cannot be supported. The rule therefore stands discharged. There will be no order as to costs. Nasim Ali, J.

(3.) I agree. The contention of Mr. Das that an appeal to the lower Appellate Court was competent inasmuch as an order under Section 173(3) is an order under Section 47, Civil P.C. is of no avail to the petitioners in the present case inasmuch as such a position would not entitle the petitioners to move this Court in revision in this case. If the order is an order under Section 47 the proper remedy of the petitioners was by way of second appeal to this Court.