Mukerji, J - (1.)This appeal arises out of proceedings held for setting aside a rent sale. The application to set aside the sale was dismissed by the Munsiff, There was an appeal preferred from this order to the District Judge and the learned Judge has ordered the sale to be set aside. From the order of the learned District Judge the present appeal has been preferred by the decree- holder. An application under Section 115 of the Civil P. C. directed against the said order, has also been filed on his behalf. The sale was held in execution of the decree which had been obtained in a suit for rent and the said decree as well as the order refusing to set aside the sale were passed by a Munsiff, who, it is conceded, had final jurisdiction to deal with the matter under Section 153 of the Bengal Tenancy Act.
(2.)The first ground that has been urged on behalf of the decree-holder is to the effect that the order which was passed by the Munsiff in the present case was one from which no appeal lay. It has been contended on behalf of the respondent that the order is covered by the exception contained in Section 153 as it decides a question relating to title to land or to some interest in land as between parties having conflicting claims thereto; in other words, it has been urged that the question as to whether the sale should or should not be set aside is a question which relates to title to land or to some interest in land as between the decree-holder who is the auction-purchaser in the present case and the judgment-debtor on the other and that, therefore, the order is covered by this exception. On behalf of the appellant it has been pointed out that by reason of the explanation to Section 153 a question as to the regularity of the proceedings in publishing or conducting a sale in execution of a decree for arrears of rent is not a question relating to title to land or to some interest in land as between parties having conflicting claims thereto. On behalf of the respondent in support of the contention that an appeal did lie from the decision of the Munsiff reliance has been placed upon the Full Bench decision of this Court in the case of Kali Mandal V/s. Ramsarbaswa Chakravarti [1905] 32 Cal. 957. In this case it was decided by a Full Bench of this Court, one of the learned Judges who sat in that Bench dissenting, that an order setting aside or declining to set aside a sale in execution of a decree for rent, the decree-holder being the purchaser, falls-within the proviso to Section 153 of the Bengal Tenancy Act, and is appealable although there could be no appeal from the decree in the suit on account of the prohibition contained in that section. The answer that is given on behalf of the appellant is that this decision is met by the explanation which was subsequently introduced by Section 153 of the Bengal Tenancy Act to which I have already referred. The respondent relies upon certain decisions of this Court to which I shall presently refer for establishing the position that notwithstanding the introduction of this explanation the effect of the aforesaid Full Bench decision has not been altogether nullified. The first case relied upon is that of Beni Madhab Ray V/s. Bissessur Bharati [1911] 17 C.W.N. 84. This was a case in which a question arose as to whether a sale held in execution of a. decree for rent was to be set aside on the ground that the judgment-debtor had applied for setting it aside after making the necessary deposit in compliance with the provisions of Section 174 of the Bengal Tenancy Act. In deciding this case the learned Judges observed thus: The explanation provides that a question as to regularity of the proceedings in publishing or conducting a sale in execution of a decree for arrears of rent is not a question relating to title to land or to some interest in land as between parties having conflicting claims thereto. In the case before us, no question arises as to the regularity of the proceedings in publishing or conducting the sale. The question raised is whether the judgment- debtor has complied with the requirements of Section 174 for reversal of the sale, We are therefore of opinion that the case is not covered by the explanation and that the rule laid down in Kali Mandal V/s. Ramsarbaswa Chakravarti [1905] 32 Cal. 9857 governs the matter.
(3.)It will be seen that the ground upon which the sale was sought to be set aside in that case was not one which can be said to relate to the regularity of the proceedings in publishing or conducting the sale but that something had been done after the sale was over which under the law, entitled the judgment-debtor to claim that the sale should be set aside. The next case that has been referred to in this connexion is that of Arjun Das V/s. Gunendra Nath Basu Mallik [1914] 18 C.W.N. 1266. In that case a sale was sought to be set aside under Section 47 and Order 21, Rule 90 of the Civil P. C. and one of the grounds of irregularity alleged in the case was that there was no proper service of notice under Order 21, Rule 22 of the Code. The Court of first instance in that case refused to set aside the sale and that order was upheld on appeal by the District Judge. Prom the decision of the District Judge in that case an application in revision had been filed before this Court and in dealing with that application the learned Judges observed: We may finally add that although the application must be deemed to have been made under Section 47 of the Code of 1908, a second appeal may at first sight seem barred under Section 153, B.T. Act, as the claim in the suit for rent was under Rs. 100; but a second appeal does lie in this case of the authority of the decision of the Full Bench in Kali Mandal V/s. Ramsarbaswa [1905] 32 Cal. 957 the effect of which, as explained in Beni Madhab V/s. Bissessur [1911] 17 C.W.N. 84 has not been completely nullified by the explanation added to Section 153.