ABDUL GAFUR MULLA Vs. KALIDHAM MONDAL

JUDGEMENT

(1.) This is an appeal by the judgment-debtor against order of the District Judge reversing the order of the Subordinate Judge setting aside a sale in execution of a rent decree on the ground that the judgment-debtor had deposited the amounts necessary under Section 174, Ben. Ten. Act. The facts are these : A decree was obtained by the landlord for about Rs. 2,430, The sale was held on 11 August 1928 and a third party purchased the property in question for Rs. 5,400 and odd. On 22 August, the judgment-debtor deposited the sum mentioned in the sale proclamation together with 5 per cent of the purchase money and on 18 September the Court made an order setting aside the sale. It was found afterwards that the amount which was necessary to be, deposited for having the sale set aside-fell short by Rs. 6O or Rs. 80. The reason for the error apparently was that the judgment-debtor deposited the sum given in the sale proclamation which only was necessary to be deposited if the application fell within Order 21, Rule 89 Civil P.C. Under Section 174, Ben. Ten. Act the judgment-debtor was bound to deposit the entire money which the decree-holder was entitled to recover. The amount which fell short was apparently on account of the interest that had to be calculated since the date of the sale proclamation and the date of deposit.

(2.) The decree-holder subsequently made-an application for review of judgment before the Subordinate Judge and he also preferred an appeal against the order of the Subordinate Judge to the District Judge. The Subordinate Judge refused to reconsider the order setting aside the sale. The learned Judge, however, on appeal preferred by the decree-holder has directed the order for setting aside the sale to be vacated and for confirming the sale. The appeal is preferred against that order of the learned District Judge. It is necessary to state that the auction-purchaser did not appeal against the order of the Subordinate Judge setting aside the sale. In this Court the decree-holder does not appear : the auction-purchaser appears and he takes a preliminary objection to the maintainability of the appeal here. The learned advocate for the appellant answers by saying that there was no appeal before the District Judge against the order of the Subordinate Judge and he has made an application in the alternative for setting aside the order of the District Judge on appeal on the ground that he had no jurisdiction to entertain the appeal. The same objection was raised by the judgment-debtor before the learned Judge but he overruled the objection on the authority of the case of Sital Bai V/s. Nanda Lal (1909) 11 C.L.J. 202 and he held that the appeal to him was competent under Section 47 of the Code. If the learned Judge was right in his view that Section 47 governed the proceedings, then there can be no question that there would be a second appeal. But the learned advocate for the respondent auction-purchaser contends that this is not a matter falling under Section 47 of the Code but there was an appeal before the learned Judge under Order 43, Rule 1(j), Civil P.C., and he relies in support of his contention on the case of Banshibadan V/s. Chhaunat Bibi A.I.R. 1926 Cal. 400. In my opinion, this contention is untenable because the provision of Order 21, Rule 89 has no application to sale under the Bengal Tenancy Act (see Section 170 of the Act). The order of the trial Court was not made under Order 21, Rule 92 of the Code on which the case cited was decided. It was made under Section 174, Ben. Ten. Act and therefore this argument on behalf of the respondent has no force whatsoever.

(3.) We have next to consider whether the matter in question falls within the provision of Section 47 of the Code as has been argued on behalf of the appellant that it does not. The case of Sital Bai V/s. Nanda Lal (1909) 11 C.L.J. 202 to which the learned District Judge has referred as supporting the proposition that the matter in controversy falls within Section 47, Civil P.C. does not appear to support the proposition in its entirety. What the learned Judges say there is this: It cannot be affirmed as a general proposition of law either that an order under Section 174, Ben. Ten. Act or under Section 310-A, Civil P.C., is or is not appealable. Whether an order made tinder either of those sections is appealable, must depend upon the circumstances of the individual case before the Court.