- (1.) THESE are two appeals on behalf of the judgment -debtors arising out of orders, passed by the Subordinate Judge, Hooghly, disposing of objections raised by them Under Section 47, Civil P. C.
(2.) THE judgment -debtors hold certain Patnis under the decree -holders opposite parties. Two suits were brought by the landlord for the realisation of Patni rent which had fallen due. In September 1944, the suits were decreed: in one case for rent upto the end of 1348 B. S. and in the other upto Ashar 1349 B. S. On 12th March 1945, the landlord decree -holder purchased the Patnis for Rs. 30,000/ - and Rs. 25,000/ - respectively, which covered a portion of the amounts due under the decrees, viz., Rs. 42,639 11 -9 and Rs. 53,254 -10 -111/2 respectively. On 9th April 1945, some of the judgment -debtors filed applications for setting aside the sale and immediately, thereafter, the landlord moved the Court for the appointment of a Receiver. The two matters were taken up together for hearing on 21st August 1945. After the Subordinate Judge had expressed the view that the application for setting aside the sale was not in a proper form the paid petition was withdrawn. The provisions of Section 168A, Ben. Ten. Act had been in force from 8th January 1941; but on 27th August 1945, the sales were confirmed by the Court without requiring the decree -holders to satisfy the provisions contained in Sub -section (3) of Section 168A of the Act. More than 14 months later on 7th November 1946, the present applications were filed on behalf of the judgment debtors Under Section 47, Civil P. C., praying for setting aside of the order dated 27th August 1945, confirming the sales. It was maintained that the Court had no jurisdiction to confirm the sales as the decree -holders had not fulfilled the imperative conditions laid down in Section 168A of the Act.
(3.) THE decree -holders auction -purchasers con -tend that as the judgment -debtors had come up to the High Court in Appeal (F. M. A. 2 and 3 of 1946) against the order dated 27th August 1945, confirming the sale, and the point now raised had not been urged before this Court before the said appeals were dismissed on 4th July 1946, the judgment -debtors are not entitled to raise this question at this stage. Further the sales having been confirmed the judgment -debtors are not entitled to obtain any relief in the present proceedings. The learned Subordinate Judge held that as the present objection had not been raised before the confirmation of sale or even in the High Court on the previous occasion he could not, after the disposal of the appeals by this Court, set aside the orders confirming the sale. But at the same time he held that the provisions of Section 168A (1) (b) and (3), Ben. Ten. Act were mandatory and he made the following conditional order: "As there has been no deposit or certificate with regard to the rent falling due from the date of the suit till the date of the confirmation of sales, so the decree -holder landlords will be directed to certify satisfaction of this rent within certain, date. If they comply with this order of the Court the sales will remain confirmed, otherwise they will be set aside as contemplated in Amano Barmanya v. : AIR1947Cal330 ." ;