Sheo Parsan Ray v. Bishen Pargash Narain Singh — 1911 DIGILAW 150 (CAL)

JUDGMENT 1. We are invited in this rule to set aside an order by which the Court below, in reversal of an order of the Original Court, has directed an execution sale to be confirmed. It appears that on the 11th August 1905 the landlord Opposite Party obtained an ex parte decree for rent against the Petitioner. He took out execution of this decree and brought the holding to sale. On the 13th May 1908, upon the application of the tenant the decree and the sale were set aside. At the same time, under sec. 153A of the Bengal Tenancy Act, the tenant deposited a sum of Rs. 46-10-6 to the credit of the landlord decree-holder. This sum represented the amount for which execution had been taken out at that stage. The suit was reheard and on the 14th September 1908 the landlord obtained a decree. This decree substantially affirmed the previous decree but as costs were awarded on a higher scale, the landlord became entitled to recover Rs. 63-13 as. The landlord then took out execution for the whole of this sum; in other words, he ignored the amount which at his instance the tenant had been compelled to deposit in his favour on the 13th May 1908. The sale took place on the 3rd March 1909. The landlord was the sole bidder on the occasion, and he purchased the property for the amount due under his decree, namely, Rs. 68-13-6. It is worthy of note that in the sale proclamation, the property had been valued at Rs. 30 only, although subsequently he offered a bid in respect thereof for the whole of the judgment-debt. The sale was confirmed on the 14th April 1909. No application was made for delivery of possession till some months afterwards, and on the 18th November following the writ for delivery of possession was issued. On the 11th December, the writ was returned unserved for want of an identifier and an order was made for a fresh issue of the writ. It appears from the return of the serving officer that the writ was served on the 18th December. Two days later, the judgment-debtor made the present application to set aside the sale. On the 11th December, the writ was returned unserved for want of an identifier and an order was made for a fresh issue of the writ. It appears from the return of the serving officer that the writ was served on the 18th December. Two days later, the judgment-debtor made the present application to set aside the sale. He stated that he had been apprised of the execution proceedings and of the sale only a week before, when he had been arrested in execution of a subsequent decree for arrears of rent obtained by the landlord, and he impugned the validity of the sale on the ground of fraud and material irregularity in its conduct. The Court of first instance found in his favour and directed the sale to be set aside. Upon appeal the learned Subordinate Judge has reversed that decision and directed the confirmation of the sale. On behalf of the judgment-debtor, we have been invited to set aside the order of the Subordinate Judge on two grounds, namely, first, that the appeal preferred to him was incompetent under sec. 153 of the Bengal Tenancy Act, and, secondly, that there has been no proper trial of the appeal on the merits. 2. In support of the first ground, it has been urged that as the decree of which execution was taken out was made by an officer specially empowered by the Local Government to exercise final jurisdiction, no appeal lay against the order for reversal of the sale held in execution of that decree. In support of this proposition, reliance has been placed upon the case of Shyama Charan Mitter v. Debendra Nath Mukerjee ILR 27 Cal. 484 (1900). It has further been contended that the effect of the decision of a Full Bench of this Court in Kali Mandal v. Ramsarbaswa Chuckerbutly ILR 32 Cal. 957: S.C. 9 C.W.N. 721 (1905), has been consideraly qualified, if not completely destroyed, by the explanation added to sec. 153 of the Bengal Tenancy Act, by Act 1 of 1907 (B.C). It has further been contended that the effect of the decision of a Full Bench of this Court in Kali Mandal v. Ramsarbaswa Chuckerbutly ILR 32 Cal. 957: S.C. 9 C.W.N. 721 (1905), has been consideraly qualified, if not completely destroyed, by the explanation added to sec. 153 of the Bengal Tenancy Act, by Act 1 of 1907 (B.C). In answer to this contention, it has been argued by the learned Vakil for the landlord Opposite Party that as the order for reversal of the sale was made by an officer not specially empowered to exercise final jurisdiction, the order was open to appeal, and that it was immaterial that the decree had been made by an officer specially empowered. In our opinion, the contention advanced by the learned Vakil for the Petitioner is unsustainable. 3. Sec. 153 provides-we quote only so much of the section as is applicable to the present case-that an appeal shall not lie from any order passed in the first instance in any suit instituted by a landlord for the recovery of rent, where the order is passed by any judicial officer specially empowered by the Local Government to exercise final jurisdiction under the section, and the amount claimed in the suit does not exceed fifty rupees. It may be conceded that according to the case of Shyama Chatan Mittet v. Debendra Nath Mukerjee ILR 27 Cal. 484 (1900), the term 'suit' in sec. 153 includes execution proceedings and that consequently the provisions of the section apply not merely to orders made in the course of a suit strictly so-called but also to orders made in the course of execution proceedings. It may also be conceded that the effect of the decision of the Full Bench in the case of Kali Mandal v. Ramsarbaswa Chuckerbutty ILR 32 Cal. 957: S.C. 9 C.W.N. 721 (1905) has been considerably restricted by virtue of the explanation subsequently added to sec. 153. But still the question arises whether the test to be applied to determine whether an order is appealable under cl. (b) of sec. 153 is the qualification of the officer who passes that order or the qualification of the officer who passes the decree in the suit. 153. But still the question arises whether the test to be applied to determine whether an order is appealable under cl. (b) of sec. 153 is the qualification of the officer who passes that order or the qualification of the officer who passes the decree in the suit. In our opinion, there is no room for controversy that whether an appeal lies or not must be determined with reference to the qualification of the officer who passes the order against which the appeal is preferred. The language of sec. 153 cannot possibly admit of the interpretations suggested by the learned Vakil for the Petitioner, namely, that if the decree in the suit has been passed by an officer empowered to exercise final jurisdiction every order made in execution of the decree is final, irrespective of the qualification of the officer by whom such order may subsequently be passed. We must hold consequently that the first ground upon which the decision of the Subordinate Judge is assailed cannot be sustained. 4. In so far as the second ground urged by the learned Vakil for the Petitioner is concerned, it is argued that the case has not been properly tried by the Subordinate Judge and that he has overlooked many important considerations, with the result that he has arrived at an erroneous and unjust decision. In our opinion, there is considerable force in this contention. The Subordinate Judge, in the first place, has taken an erroneous view of the fundamental point in the case. As we have already stated, the tenant judgment-debtor, on the 13th May 1908, made a deposit of Rs. 46-10-6 to the credit of the landlord when an order for reversal of the ex parte decree and the sale held on the basis thereof was made in his favour. The Subordinate Judge has held that the landlord was not bound to allow credit to the tenant for the deposit so made. No doubt sec. 153Adoes not specifically prescribe the mode of application of the money deposited by the person at whose instance the ex parte decree has been set aside. But it is reasonably clear that the intention of the Legislature was that if at the retrial the decree is ultimately made in favour of the landlord, he should, in the first instance, apply the sum deposited towards satisfaction of his decree. But it is reasonably clear that the intention of the Legislature was that if at the retrial the decree is ultimately made in favour of the landlord, he should, in the first instance, apply the sum deposited towards satisfaction of his decree. In the case before us, an examination of the record shows that the deposit was made to the credit of the landlord. Consequently it was not open to the judgment-debtor, at any stage subsequent to the deposit, to apply the money for his own benefit. As the money was deposited to the credit of the landlord, he was, in our opinion, bound to apply it in part satisfaction of the decree ultimately made in his favour, and was entitled to take out execution for the balance only of the judgment-debt. In the second place, it is clear that the Subordinate Judge has completely overlooked the bearing of the important circumstance that no application was made for delivery of possession by the landlord till some months after the decree had been made and the sale had taken place. As we have already stated, the writ for delivery of possession was not issued till the 18th November 1909. The first attempt was infructuous by reason of the default of the decree-holder himself and possession was not delivered till the 18th December. Two days later, the judgment-debtor made an application for reversal of the sale, and he contended that he had been kept by the fraud of the decree-holder from the knowledge of his right to have the sale set aside. The Subordinate Judge has not considered the truth of these allegations, but has examined the case from the opposite point of view. He has stated that the decree was made after contest, and that, upon the evidence, it was clear to him that the execution proceedings had taken place regularly. He has also relied upon the circumstance that mention was made of this sale in the plaint in a subsequent suit instituted by the landlord against the tenant and held that the inference was irresistible that the tenant must have read the plaint and have been thus apprised of the sale earlier than the 18th December 1909. But there is no evidence to show that the allegations in the plaint were ever brought to the notice of the tenant. But there is no evidence to show that the allegations in the plaint were ever brought to the notice of the tenant. What thus appear at first sight to be a finding of fact by the learned Judge turns out upon examination to be based upon no evidence at all. It cannot also be overlooked that the landlord valued the property at Rs. 30 for the purpose of an entry in the sale proclamation, although he was himself prepared at a subsequent stage to offer a bid of Rs. 68. The Subordinate Judge has overlooked the bearing of this circumstance and has also failed to consider that there was no bidder present at the sale except the landlord himself. As regards the value of the property, the Court of first instance found that the holding which comprises 9 bighas and 10 cottahs had been purchased by the landlord for Rs. 68. The Court also found that the ordinary rate at which lands of this description are sold in that part of the country is Rs. 50 a bigha. The Subordinate Judge has not examined the part of the case, but, upon what materials we are not aware, has stated that the value of the property must be at least Rs. 150. But if the value be taken to be Rs. 150 and not Rs. 500 as found by the original Court, it is clear that there was a deliberate misstatement of the value by the landlord for the purpose of the sale proclamation, and that he has purchased the property at less than half its value. 5. Upon a review then of the whole case, it appears that the landlord took out execution for a larger sum than he was entitled to do; he deliberately misstated its value in the sale proclamation and in the absence of all competitors purchased it for a small fraction of its real value; and finally he designedly refrained from taking out writ for delivery of possession for several months after the sale had taken place. The circumstances under which the property has been sold, therefore, do not bear careful scrutiny. The Subordinate Judge when he reversed the decision of the Court of first instance was, in our opinion, seriously in error and there was no proper trial of the appeal by him. The circumstances under which the property has been sold, therefore, do not bear careful scrutiny. The Subordinate Judge when he reversed the decision of the Court of first instance was, in our opinion, seriously in error and there was no proper trial of the appeal by him. The result is that this rule is made absolute and the order of the Court of the first instance restored. The Petitioner is entitled to costs in all the Courts. We assess the hearing fee in this Court at three gold mohurs.