LAWS(PVC)-1936-12-138

HANUMAN SINGH Vs. BABA BAIJNATH PRASAD SINGH

Decided On December 22, 1936
HANUMAN SINGH Appellant
V/S
BABA BAIJNATH PRASAD SINGH Respondents

JUDGEMENT

(1.) The appellant was the auction-purchaser of a holding put up to sale in execution of a decree for rent of the holding itself. The order objected to is an order setting aside the sale on the application of a transferee from the judgment- debtor who came to the Court on the twenty-ninth day after the sale and deposited five per cent, of the purchase money for payment to the auction- purchaser and in lieu of depositing in Court under Section 174(1), Bengal Tenancy Act, the amount recoverable under decree with costs for payment to the decree- holder, stated by petition that the payment had been made out of the Court to the landlord. The landlord decree-holder assented to this statement and to the application to set aside the sale. The objection of the petitioner auction-purchaser was over-ruled. The contention on his behalf is that the Court was bound to affirm the sale unless the money was actually deposited in Court. The points for determination are : first, whether it was contrary to law to set aside the sale without the money being deposited and secondly, whether the error amounts to such an illegal or materially irregular exercise of jurisdiction as would call for the interference of this Court tinder Section 115, Civil Procedure Code.

(2.) It is quite clear that the, procedure followed by the Munsif was not that laid down in the Bengal Tenancy Act. Section 174(2) provides for setting aside the sale "if such deposit is made within the thirty days" and not otherwise. The language of this section is different from that of Section 170 in which the conditions are laid down under which an order for the sale of a holding is vacated and the holding released from attachment. This is done under Section 170(2) if either the amount of the decree including costs is paid into Court or the decree-holder makes an application for the release of the holding on the ground that the decree has been satisfied out of Court. There is no reference in Section 174 to any such application by the decree-holder on the ground that the decree has been satisfied out of Court and on a plain, reading of the words of the statute it seems to me that the intention was that the sale must be confirmed unless the money is paid into Court This was laid down in Kabilaso Koer V/s. Raghu Nath 18 C. 481, by Sir Comer Petheram, C.J., as long ago as 1891 and that has been held to be settled law in Raghunandan Pandey V/s. Garju Mandal 6 P.L.T. 795 : 91 Ind. Cas. 217 : A.I.R. 1925 Pat. 525 : 4 Pat. 718 : (1925) Pat. 183. The earliest case that has been pointed out to me in which the rule was relaxed in Ram Prasad V/s. Ram Charan Singh 27 Ind. Cas. 601 : A.I.R. 1916 Cal. 64, in which the decree-holder and auction-purchaser were one and the same person and there had been an agreement between him and the judgment-debtor that the sale should be set aside. Jenkins, C.J., said: The learned Judge before whom this reasonable application was made seems to have felt that his action was paralysed, because this particular predicament did not fall within the precise words, of the Rule 89 onwards of Order XXI. but I venture to think that where a case of that kind arises, it certainly is open to the Court not to confirm the sale and to treat the sale as being of no effect that being the concurrent wish of the parties and the obvious requirement of the case.

(3.) In this case and in Shivram Sand V/s. Manulal Khemka 104 Ind. Cas. 753 : 104 Ind. Cas. 753 : A.I.R. 1928 Pat. 40 similarly decided, the only parties before the Court were the decree-holder who was also the auction purchaser and the judgment-debtor. I should point out that in the other Calcutta case Kabilaso Koer V/s. Raghu Naih 18 C. 481, as well as Raghunandan Pandey V/s. Garju Mandal 6 P.L.T. 795 : 91 Ind. Cas. 217 : A.I.R. 1925 Pat. 525 : 4 Pat. 718 : (1925) Pat. 183, the purchaser was a third party. I have been referred to Inderdeo Tiwari V/s. Ram Ran Bijay Prasad Singh 16 P.L.T. 709 : 161 Ind. Cas. 714 : A.I.R. 1936 Pat. 164 : 2 B.R. 372 : 8 R.P. 481, in which it was held that where the auction-purchaser, the judgment-debtor and the decree-holder all concur in a compromise waiving the requirement of law in Section 169, Bengal Tenancy Act, for deposit by the auction- purchaser of the balance of the purchase money, the Court may give effect to that compromise although the procedure was not strictly in accordance with Section 169.