SARAT CHANDRA DAS Vs. MATI LAL CHUCKERBUTTY

JUDGEMENT

(1.) The petitioner in this Rule held a permanent under-tenure in a taluk. It was sold in execution of a decree for arrears of rent under the provisions of the Eastern Bengal and Assam Tenancy Act and the petitioner applied under Order XXI, Rule 89, of the Civil Procedure Code to have the sale set aside on deposit of money under that section.

(2.) The case comes from the District of Backergunge.

(3.) Section 170 of the Eastern Bengal and Assam Tenancy Act does not exclude the operation of Section 310A (corresponding to Order XXI, Rule 89, of the present Code of Civil Procedure) to a tenure or holding attached in execution of a rent decree, as is done by Section 170 of the Bengal Tenancy Act. Order XXI, Rule 89, Civil Procedure Code, therefore, applies to a sale held for arrears of rent in Eastern Bengal and Assam, and the question for consideration is whether an under-tenure comes within that rule. Order XXI, Rule 89, says: "Where immoveable property has been sold in execution of a decree, any person, either owning such property or holding an interest therein by virtue of a title acquired before such sale, may apply to have the sale set aside." We think that a person holding a permanent under-tenure in the property sold holds an interest therein. His rights are undoubtedly affected by the sale; in fact it can be annulled by the purchaser. In the case of Paresh Nath Singha v. Nabogopal Chattopadhya 29 C. 1 (F.B.) : 5 C.W.N. 821 it was held by the majority of the Full Bench that a mortgagee of a tenure or holding sold in execution of a decree for arrears of rent due in respect of it is entitled to make an application under Section 310A of the Code of Civil Procedure as being a person whose immoveable property has been sold within the meaning of that section. That case is one of a simple mortgage, but it lays down the principle that a person having an interest in the property is entitled to come in under Section 310A.