LAKENATULLA Vs. ASMATULLA SARKAR

JUDGEMENT

(1.) THE petitioner before us was the, judgment-debtor in an execution case, in the Court of the Munsif, in which the decree-holder had attached a holding for sale. He objected to the sale on the ground that the holding was an occupancy holding and, as such, was not saleable. This objection was raised by him on the 3rd November, the sale haying been fixed for the 6th. THE Munsif held that the application had been filed too late and that the sale, therefore, should not be postponed-At the same time, he directed the application to be put up on the 26th of November for hearing. THE holding was sold on the 6th of November, and on the 26th the application of the petitioner havipg been put up before the Munsif, he took evidence in the matter and came to the conclusion that the hojding was not saleable, and accordingly set aside the sale. On appeal by the decree-holder, the learned District Judge set aside the order of the Munsif dated the 26th November, on the ground that the Munsif could not go into the qustion whether the holding was liable to sale or not, after the sale had already been held. THE petitioner thereupon obtained this Rule from this Court calling upon tha opposite party to shovy cause why the order of the District Judge should not be set aside.

(2.) WE are of opinion that the proceedings of the Munsif in allowing the application to stand pver till the 26th November and at the same time holding the sale on the 6th November were wholly irregular. He ought WPt to haye held the sale without making inquiries into the objection raised by the judgment-debtor on the ground that the property was not saleable. The proper procedure ought to have been for the judgment-debtor to appeal against the order refusing to postpone the sale or directing the sale to take place, notwithstanding thp pendency of the application in which thp question of the saleability of the holding was raised. But before the period for appeal against the order expired, the Munsif took up the application on the 26th November and set aside the sale. So, although the proceedings of the Munsif were irregular, the order ultimately passed by him appears to be right. Under the circumstances, we think that the order of the District Judge should be set aside and that of the Court of first instance dated the 26th November restored.