LAHIRI, J. - (1.) THE applicant for pre -emption under Section 26F (1), Bengal Tenancy Act, obtained this rule which is directed against an order of the First Subordinate Judge, Howrah, affirming the decision of the Munsif Uluberia, by which the application of the opposite party to join as a co -applicant under Section 26F (4) (a) was allowed.
(2.) THE facts of the case which, are undisputed are as follows: On 12th November 1946, the opposite party purchased a share of an occupancy holding at an auction sale held in execution of a decree but no notice of the purchase was served on the co -sharers under Section 260. The petitioner came to know about the sale on 28th March 1948 and on 16th April 1948 he made the application under Section 26F (1). Notice of this application was served on the opposite party under Section 26F (3) on 16th July 1948, and on 19th July 1948 the opposite party filed an application under Section 26F (4) (a) for joining in the application as a co -applicant alleging that he was a Co -sharer of the holding from before the date of his auction purchase. This application was resisted by the petitioner on the ground that it was filed beyond the period of special limitation provided for by Sub -section (4) (a) of Section 26F, Bengal Tenancy Act and as such it was liable to be dismissed. The Court of first instance hold that though the application is barred under Section 26F (4) (a) it was within time under Sub -section (1) because the opposite party was not served with a notice under Section 260 and was therefore entitled to apply within three years from the date of sale under the decision of the Special Bench in the case of Asmat Ali v. Mujahar Ali : AIR1948Cal48 . The appellate Court holds that the opposite party being a transferee was not requited to be served with a notice under Section 260 and therefore his application was not maintainable under Sub -section (1); but the appellate Court affirmed the decision of the first Court on a different ground by applying the principle of certain decisions given by this Court under Section 26F as it stood before the amendment of 1938, e. g. Gadadhar v. Gopal Chandra : AIR1936Cal343 ; Sachindra Nath v. Trailakya Nath : AIR1936Cal576 and Satis Chandra v. Jogendra Krishna, 41 C. W. N. 674 in which it has been held that when on account of the default of the Court the notice of an application by a co -sharer, landlord has not been served on other co -sharer landlords within a month, the Court has inherent power to relieve the latter against the time limit for making an application under Sub -section 4 (a) and an application made by a co -sharer landlord under Sub -section 4 (a) will be allowed provided it is filed within a reasonable time of the service of the notice upon him, although it is filed after a month from the date of the application under Sub -section (1).
(3.) MR . Das Gupta appearing for the petitioner has argued that the decisions under the old Section 26F will not apply to Section 26F after the amendment of 1938, because under Section 188, Bengal Tenancy Act, as it stood before the amendment of 1938 it was obligatory upon a co -sharer landlord to implead the remaining co -sharers in an application under Section 26F; whereas after the amendment of 1938, a cosharer tenant in making an application under Section 26F is not required to implead the other cosharer tenants. Reliance has also been placed on the decision in Gobardhan v. Gunadhar : AIR1941Cal78 , where it has been held that after the amendment of 1938 cosharer tenants are not necessary parties to an application under Section 26F. With regard to this argument it is to be noticed that a transferee cosharer is certainly a necessary party to an application under Section 26F and Sub -section (3) provides for a notice to be given to the transferee. The transferee cosharer tenant in a proceeding under Section 26F after the amendment of 1938 therefore stands in the same position as a cosharer landlord in a proceeding under Section 26F before the amendment. Consequently the principle of the decision in Satis Chandra v. Jogendra Krishna, 41 C.WN. 674 would apply to the case of a cosharer tenant who is a transferee and if no notice is served on him within a month by the fault of the Court he must be allowed to pre -empt if he applies within a reasonable time from the service of the notice.;