BENOY BHUSAN DAS Vs. UMA CHARAN PODDAR

JUDGEMENT

(1.) THIS Rule is directed against the decision of the Subordinate Judge, First Court at Barisal, dismissing an appeal before him on the ground that no appeal lay in the case under the law. In that view of the matter the learned Subordinate Judge confirmed the order made by the primary Court, the Munsif's first Court at Barisal. The order of the Munsif against which an appeal was preferred by the petitioners, to the Court of the Subordinate Judge, was passed on an application for getting aside a sale, made under the provisions of Section 174, Ben. Ten. Act. The Munsif, it may be mentioned, was an officer specially empowered to exercise final jurisdiction in cases referred to in Section 153, Ben. Ten. Act. The application for setting aside the sale was made by the petitioners before us and related to execution of the decree in a suit for rent valued at less than Rs. 50. The question before the Munsif was whether there was a fraudulent suppression of sale processes, and the Munsif in his order held that the evidence on the record did not show that there was fraudulent suppression of processes. In the above view of the case before him, the Munsif rejected the petition for setting aside the sale. As mentioned already, on appeal to the Subordinate Judge, the Court of appeal held that the appeal was not maintainable under the law. The point raised in support of the Rule by the learned advocate for the petitioners is this: that under Section 174, Clause (5), Ben. Ten. Act, an appeal to the Court of appeal below was competent, and that the explanation to Section 153 of the Act did not and could not control the right of appeal generally given by Section 174, Clause (5) of that Act. In view of the recent decisions in this) Court so far as they bear on the facts of the case before us, and on the explanation added to Section 153, as also upon Clause (5), Section 174, Ben. Ten. Act, the decisions from which we find no reason whatsoever to express dissent, it would serve no useful purpose to enter into an elaborate discussion of the question argued before us in this case with great ability by the learned advocate for the petitioners. As observed by the learned Chief Justice in the case of Jugal Chandra V/s. Ramesh Chandra the Amending Act of 1928 has left the explanation to Section 153, Ben. Ten. Act standing side by side with the provisions of Clause (5), Section 174 which gives a right of appeal from a decision upon orders to set aside sales, which orders under the new Act are to he made under that section and no longer under Order 21, Rule 90, Civil P.C. The two sections are to be read together and there can be no difficulty in saying that the special provisions made by the explanation added to Section 153 of the Act with reference to cases of a very small value are intended to control the general provisions relating to appeals as contained in Section 174 and in our judgment fraud, as was alleged in the case before us, was not intended to be something different from irregularity of proceedings in publishing and conducting the sale as mentioned in the explanation to Section 153: see in this connexion the cases of Jahir Mondal V/s. Radha Rangini Devi and Maharaj Bahadur Singh V/s. Kurani Mai .

(2.) WE have therefore no hesitation in coming to the conclusion that the Subordinate Judge in the Court below is right in holding that no appeal lay from the order passed by the trial Court in the present case rejecting the application of the petitioners in this Court for setting aside the sale. The rule is accordingly discharged with costs, hearing-foe being assessed at two gold mohurs.