Azgar Ali v. Asaboddin Kazi — 1904 DIGILAW 189 (CAL)

JUDGMENT 1. This is an appeal against an order of the Subordinate Judge of Tipperah reversing an order of the Munsif of Comilla setting aside a sale of an occupancy holding held in execution of a decree for arrears of rent. It appears that one Hossan Gazi was the tenant of the occupancy holding, the sale of which is impeached in these proceedings, and conveyed a portion thereof to the present Appellant, Azgar Ali. The validity of his purchase was disputed by the vendor and his co-sharers, but after a series of litigation to which it is not necessary to refer in detail, Azgar succeeded in getting his title declared and his possession confirmed as against his vendor. Default was made in the payment of rent, the landlord sued the recorded tenant, obtained a decree and in execution thereof brought the property to sale which was purchased by one Asabaddi Kazi. Azgar thereupon applied to the Munsif to set aside the sale, first, under sec 244, C. P. C, on the ground that it was vitiated by fraud, secondly, under sec. 311, C. P. C, on the ground that there had been material irregularity in publishing and conducting the sale which had caused substantial injury, and, thirdly, under sec. 173, cl (3) of the Bengal Tenancy Act, on the ground that the purchase had been made by the judgment-debtor himself in the name of the auction-purchaser. The opposite parties to this application were the decree-holder, the judgment-debtor and the auction -purchaser, but It was the auction-purchaser alone who resisted the application. The first Court found that as the sale had been held in execution of a rent decree against the recorded tenant, it affected the interest of the applicant who might therefore be regarded as the representative of one of the parties to the rent suit and consequently entitled to maintain the application under sec. 244, C. P. C. Upon the merits, the learned Munsif found that the sale was a fraudulent one, brought about by the collusion of the judgment-debtor and the landlord's agent, who had devised the method of depriving the Petitioner of the interest he had acquired in the property by purchase and which he had successfully asserted against the judgment-debtor. 244, C. P. C. Upon the merits, the learned Munsif found that the sale was a fraudulent one, brought about by the collusion of the judgment-debtor and the landlord's agent, who had devised the method of depriving the Petitioner of the interest he had acquired in the property by purchase and which he had successfully asserted against the judgment-debtor. In this view of the matter the Court of first instance set aside the sale and did not consider the ground which might be urged in support of the application treated as one under sec. 311, C. P. C, or sec. 173 of the Bengal Tenancy Act. Against this order, the auction-purchaser alone appealed to the Subordinate Judge who has refused to set aside the sale on the ground that the Petitioner had no locus standi to make an application under sec. 244, C. P. CL, inasmuch as he had purchased the holding before the decree in the rent suit and was consequently not a representative of a party to the suit within the meaning of that section. Against this order of the Court below, the Petitioner has appealed to this Court and on his behalf, the decision of the Subordinate Judge has been assailed on two grounds: first, that the Petitioner is the representative of a party to the suit within the meaning of sec. 244, C. P. C, inasmuch as he is bound by the retdecree and the sale thereunder also affects his interest, and, secondly, that in any event the Subordinate Judge ought to have determined whether or not there were good grounds for setting aside the sale under sec. 311, C. P. C, and sec 173 of Bengal Teuancy Act. We are of opinion that each of these contentions is well founded and must prevail. As regards the first ground taken before us, it appears to be clear upon the authority of the decision of a Full Bench of this Court in the case of Ishan Chandra Sarkar v. Beni Mudhab Sirkar I. L. R, 24 Cal. 62 (1896), that the Petitioner is the representative of a party, namely, the Defendant, to the suit and as such is entitled to maintain the application under sec. 244, C. P. C. 2. It was held in that case that the term "representative" as used in sec. 62 (1896), that the Petitioner is the representative of a party, namely, the Defendant, to the suit and as such is entitled to maintain the application under sec. 244, C. P. C. 2. It was held in that case that the term "representative" as used in sec. 244, C. P. ft, when taken with reference to the judgment-debtor does not mean only his legal representative, that is, his heir, executor or administrator, but it means his representative in interest and includes a purchaser of his interest, who, so far as such interest, is concerned, is bound by the decree. As was pointed out by Banerjee, J., it is difficult on principle to maintain that a purchaser of the judgment-debtor's property who, so far as such property is concerned, Is bound by the decree, is not a representative in interest of the judgment-debtor and is not entitled to a hearing if he has any objection to urge against the execution; "he is bound by the decree and is affected by the execution proceedings so far as they relate to the property purchased by him; while, on the other hand, the party who stands on the record as the judgment-debtor may be wholly unconcerned so far as the execution goes against such property for the simple reason that he has no longer any interest in it. In such a case the execution is really proceeding against the purchaser, though nominally against the judgment-debtor on the record; and to allow it to go on without hearing the objection of the purchaser when he may be prepared to show that execution ought not to proceed as played by reason of the decree being barred or satisfied or for any other good reason, would be to take a course fraught with such manifest hardship to the purchaser that I should hesitate to affirm it as correct unless the law was quite clear on the point." In order to apply these principles to the facts of the case now before us, we have to determine whether the Petitioner as purchaser of a portion of the occupancy holding which has been sold in execution of a decree for arrears of rent due thereon, is bound by that decree and whether the sale would affect his interest. Now it is settled beyond the possibility of dispute that when a landlord obtains a decree for rent against his registered tenant, the defaulting holding may be sold in execution of such a decree, although it may have previously passed into the hands of persons other than the judgment-debtor and such unrecorded transferees would be bound by the sale, see Sham Chand Kundoo v. Brojo Nath Pal 21 W. R. 94; 12 B. L. R.484 (1873), Rash Behary v. Peary Mohun I. L. R. 4 Cal. 846(1878), Chandra Narain v. Kisken Chand I. L. R. 9 Cal. 855 (1888), Panye Chunder v. Hur Chunder I. L. R. 10 Cal. 496 (1884) and Chandra Sukai v. Kali Prasanno I. L. R. 23 Cal. 254 (1895). It is manifest therefore that the present Petitioner is bound by the rent-decree and is also affected by the execution sale, and he must accordingly be regarded as the representative of a party to the suit (namely, the Defendant) within the meaning of sec. 244, C. P. C, as explained in the case of Ishan Chandra Sarkar v. Beni Madhab Sirkar I. L. R. 24 Cal. 62 (1896). The learned vakil for the Respondent has sought to distinguish the Full Bench case on the ground that there the purchaser of the interest of the judgment debtor who successfully claimed to be his representative had acquired his interest after the decree which was sought to be executed, whereas in the case now before us, the person who claims to be the representative of the judgment-debtor admittedly acquired his interest long before the decree in the rent suit. We are of opinion that the distinction relied upon does not in any way affect the true solution of the question raised before us, namely, is the transferee who claims to be the representative bound by the decree ? In the Full Bench case in order to show that he was so bound it was necessary to rely upon the fact that his purchase had taken place subsequent to the decree in the mortgage suit and that he was accordingly quite as much bound by the decree, either upon the principle of lis pendens or of res judicata, as the judgment-debtor himself. In the case now before us the peculiar nature of a rent-decree makes it binding upon the purchaser of the holding even though his purchase may have taken place before the decree is made or even the suit instituted. The essence of the principle which underlies the decision in the Full Bench case is that a transferee of the interest of the judgment-debtor in order that he may be clothed with the legal character of his representative, must be bound by the decree. The essential criterion is, not the point of time at which he acquired his interest, but the nature of the decree and the nature of his purchase. If as purchaser he is bound by the decree and consequently affected by the sale, he must be regarded as the representative. The learned vakil for the Respondent has contended that this view is opposed to that taken by this Court in the cases of Kalu Saka v. Bhagabati Debya 6 C.W.N. 127 (1901) and Sarala Dasee v. Saroda Prasad Bose Mis. App. 398 of 1903 (unreported) (1904), decided by Rampini and Mitra, JJ., on the 7th July 1904, and that accordingly the matter must be referred to a Full Bench. In each of these cases It appears that an application was made by a transferee of a holding to set aside a sale held in execution of a decree for arrears of rent obtained by a landlord against a recorded tenant and it was held by this Court that the applicant was not a representative of the judgment-debtor within the meaning of sec. 244, C. P. C, inasmuch as he had purchased the property before the decree. In the first of these cases it appears from the judgment that it was not urged by the applicant that he was bound by the decree and the learned Judges accordingly held upon the authority of Kameshwar Pershad v. Run Bahadur I. L. R. 12 Cal. 458 (1886) and Ishan Chandra v. Beni Madhab I. L. R. 24 Cal. 62 (1896), that the Petitioner was not the representative of the judgment debtor. 458 (1886) and Ishan Chandra v. Beni Madhab I. L. R. 24 Cal. 62 (1896), that the Petitioner was not the representative of the judgment debtor. In the second of the two cases referred to, it does not appear from the judgment of this Court that it was brought to the notice of the learned Judges that the sale had taken place in execution of a rent decree (which we find to be the fact from an examination of the records in the case) and would consequently be binding upon an unrecorded transferee from the recorded tenant. The judgment appears to proceed on the assumption that as the applicant was a purchaser before decree, he had no right to come under sec. 244, C. P. C. Although, therefore, upon the view we take of the law we must hold that the cases of Kalu Saha v. Bhagabati 6 C. W. N. 127 (1901) and Sarala Dasee v. Saroda Prasad Bose Mis. App. 398 of 1903 (unreported) (1904) were not correctly decided and are inconsistent with the decision of the Full Bench in the case of Ishan Chandra v. Beni Madhab I. L. R. 24 Cal. 62 (1896), we do not think it necessary to refer this case to a Full Bench inasmuch as in the first of the two cases referred to the decision was baaed upon an admission by the parties that the applicant was not bound by the rent-decree and in the second case the fact that the sale had taken place in execution of a rent-decree was overlooked and the Court was apparently not asked to consider the legal effect of such a sale. We hold accordingly that the Appellant was entitled to ask for a reversal of the sale under sec. 244, C. P. C. We may add that as pointed out by the Judicial Committee in the case of Prosunno Kumar Sanyal v. Kali Das Sanyal I. L. R. 19 Cal. 683 (1892) and by this Court in the case of Set Umed Mal v. Srinath Roy 4 C. W. N. 692 : s c. I. L. R. 27 Cal. 810 (1900), a wide and liberal construction is to be put upon sec. 244 of the Code And. the parties are not to be driven to an independent suit unless the case be clearly outside the scope and purview of the section. 3. 810 (1900), a wide and liberal construction is to be put upon sec. 244 of the Code And. the parties are not to be driven to an independent suit unless the case be clearly outside the scope and purview of the section. 3. The second contention advanced on behalf of the Appellant is that in any view of the matter the application could be well sustained as one either under sec. 311, C. P. C, or under sec. 173 of the Bengal Tenancy Act; this argument appears to us to be well founded and must succeed. Under sec. 311 of the CPC which as is obvious from secs. 143 and 174of the Bengal Tenancy Act, applies to sales in execution of decrees for arrears of rent, an application to set aside a sale may be made by any person whose immoveable property has been sold. The only question therefore which we have to determine is whether the applicant can claim to be a person whose immoveable property has been sold under the sale which he seeks to set aside. Now as has been shown before, the effect of the sale has been to pass to the purchaser the entire holding including the interest of the applicant therein, and it is difficult to see how it can be successfully contended that the Petitioner does not come under the description of a person whose immoveable property has been sold. But it has been argued by the learned vakil for the Respondent that the Petitioner as the transferee of a portion of an occupancy holding has not acquired any valid interest in the holding as against the landlord and in support of this position he has relied upon the decision of this Court in the case of Kuldip Singh v. Gillandrrs I. L. R. 26 Cal. 615 (1899). 615 (1899). No doubt this case is an authority for the proposition that if such a purchaser is forcibly ousted by the landlord, he cannot recover possession, inasmuch as against the landlord, the purchaser, " shows no title under which he can demand to be restored to possession of a portion of the holding." We find, however, that the correctness of this decision has been called in question in the case of Benodini Dassi v. Peary Mohan Haldar 8 C. W. N. 66 (1903), and if the case had been directly in point upon the question now before us, we should have to consider whether the matter ought not to be referred to a Full Bench. We need only point out, however, that there is a substantial distinction between the question whether a purchaser of a portion of an occupancy holding acquires an interest therein and the question whether such transfer effects a sub-division of the tenancy, which is not binding on the landlord as made in contravention of sec. 88 of the Bengal Tenancy Act, and reference may be made to the cases of Kabil Sirdar v. Chandra Nath Nag Chowdhari I. L. R. 20 Cal. 590 (1892), Durga Pro-sad Sen v. Doula Gazee 1 C. W.N. 160(1894) and Sheik Gozaffur Hossein v. E. Dablish 1 C. W. N. 162 (1596), as showing that a transfer by an occupancy raiyat of a part of his holding does not entitle the landlord to recover possession of the land so transferred by ejecting the transferee as a mere trespasser. We find, on the other hand, that it has been held by this Court in the cases of Bungshidhar v. Kednr Nath 1 C W. N. 114 (1896), Benodini Dassi v. Peary Mohan Haldar 8 C.W.N. 55 (1903) and Kunja Behari Mondal v. Sambhu Chandra Roy 8 C.W.N. 232 (1903), that when an occupancy holding has been sold in execution of a decree for arrears of rent, a person who is the transferee of a share or portion of such a holding is entitled to make an application to set aside the sale under sec. 310A, C. P. C. We entirely agree in the view of the law taken in these two cases, namely, that the transferee of a share or a portion of an occupancy holding has such an interest therein as he is entitled to protect and that he must consequently be regarded as a person whose immoveable property has been sold in execution of the rent decree, as by such sale his interest would be affected or destroyed. The words " any per-son whose immoveable property has been sold" find a place in both secs. 310A and 311, C. P. C, and there is no reason why in the latter of these two sections they should bear a narrower and more restricted meaning than has been put upon them in connection with the earlier section. We hold accordingly that the Appellant before us was entitled to make au application under sec. 311, C. P. C. 4. As regards the contention of the learned vakil for the Appellant that the Petitioner was entitled to apply under sec. 173, sub-sec. (3) of the Bengal Tenancy Act, there can be no doubt that it is supported by the language of that section which entitles any person interested in the sale to make an application to set it aside on the ground that the holding had been purchased by the judgment-debtor in the name of the auction-purchaser. The Court of first instance does not appear to have gone into this part of the case as the sale was set aside under sec. 244, C. P. C, on the ground that it was vitiated by fraud. Should however the case of the Petitioner under sec. 244 as also under sec. 311, C. P. C, fail his case under sec. 173 of the Bengal Tenancy Act must be investigated and he ought to be allowed an opportunity of establishing the truth of his allegations in this respect. The result therefore is that this appeal must be allowed, the order of the Court below reversed and the case remitted to the learned Subordinate Judge, in order that he may try it on the merits in its different aspects as directed in this judgment. The auction-purchaser Respondent, must pay the Appellant his costs of this appeal. We assess the hearing fee at 3 gold mohurs.