Barkal Parida v. Jogendra Nath Sen — 1911 DIGILAW 195 (CAL)

JUDGMENT 1. We are invited in this Rule to cancel an order of refusal to vacate a sale held on the 16th January 1911, under Act VIII of 1865 read with sec. 105 of Act X of 1859. The Court below has held that as the sale took place under the provisions of the Acts mentioned, it was not liable to be set aside under sec. 174 of the Bengal Tenancy Act, notwithstanding that Ch. XIV of the Bengal Tenancy Act which includes sec. 174 was extended to6 the district where the sale took place, on the 3rd January 1907. The sole question in controversy between the parties therefore is as to the precise effect of the extension of sec. 174 of the Bengal Tenancy Act to that district. It has been contended on the behalf of the Opposite Party that as sec. 174 is inconsistent with the provisions of sec. 11 of Act VIII of 1865 (B. C.) the provisions of the latter section ought to prevail. In support of this argument reliance has been placed upon sec. 2 of the Bengal Tenancy Act which provides in sub-sec. (2) that where a portion only of the Act has been extended to the Division of Orissa or any part thereof, so much of the provisions of the enactments in force there as is inconsistent with the portion extended shall be repealed in that division or part. We have been invited to read this provision with Sch. I to the Bengal Tenancy Act which makes mention of Act X of 1859 but not of Act VIII of 1865 (B. C). It has been argued that if the intention of the Legislature was that the extension of any portion of the Bengal Tenancy Act would by implication operate as a repeal of the provisions of Act VIII of 1865 (B. C.) mention would have been made of the latter Act in the first schedule. In our opinion there is no force in this contention. The provisions of sec. 2, sub-sec. (2) of the Bengal Tenancy Act were no doubt introduced by way of excessive caution, West Derby v. Metropolitan Life Assurance [1897] A. C. 617. In our opinion there is no force in this contention. The provisions of sec. 2, sub-sec. (2) of the Bengal Tenancy Act were no doubt introduced by way of excessive caution, West Derby v. Metropolitan Life Assurance [1897] A. C. 617. Even if such a provision had not been incorporated in the Bengal Tenancy Act, the effect would have been that as soon as any portion of the Bengal Tenancy Act was extended it would by implication repeal the inconsistent provisions of the pre-existing statutes. [Dean of Ely v. Bliss 5 Bear 582, West Ham v. Fourth City L. R. [1892] 1 Q. B. 654]. In such a case the maxim applies leges posteriores priores contrarias abrogant. This is also sufficiency indicated by the provisions of cl. (f) of sec. 195 of the Bengal Tenancy Act. It would be meaningless to hold that sec. 174 of the Bengal Tenancy Act has been extended to the Division of Orissa but that it has no application to sales held there under Act VIII of 1865 (B. C). No doubt there is an inconsistency between the two sections to this extent that whereas sec. 11 of Act VIII of 1865 (B. C.) renders it obligatory upon the Court to confirm the sale and thereby to create a valid tile in the purchaser upon the happening of specified contingencies, sec. 174 of the Bengal Tenancy Act entitles the judgment debtor to have the sale vacated upon the payment of a prescribed sum. But the provisions of the latter statute must clearly prevail over the inconsistent provisions of the earlier statute. We may add that sec. 4 of Act VIII of 1865 (B. C.) plainly indicates that in cases of sales had under the provisions of sec. 105 of Act of 1859, the provisions of Act VIII of 1865 (B. C.) ought to be treated as supplementary to those of Act X of 1859. But it has not been admitted by the learned Vakil for the Petitioner that the sale in this case did take place under the provisions of Act X of 1859 and it is unnecessary for us to decide whether it was so held, because the judgment-debtor was entitled in any view to have the sale reversed under the provisions of sec. 174 of the Bengal Tenancy Act. 2. 174 of the Bengal Tenancy Act. 2. The result, therefore, is that this Rule is made absolute and the order of the Court below discharged. The Petitioner will be at liberty to have the sale set aside upon payment of the prescribed sum. The payment must be made within one week of the arrival of the record in the Court below. Notice of such arrival will be given to the Petitioner. The Petitioner is entitled to the costs of this Rule. We assess the hearing-fee at one gold mohur.