Banga Chandra Mozumdar v. Nanda Kumar Mozumdar — 1936 DIGILAW 206 (CAL)

JUDGMENT R.C. Mitter, J. - The five Opposite Parties in this Rule, obtained a decree for rent against the Petitioner Banga Chandra Majumdar. That decree was put into execution and the judgment-debtor's tenure was sold on the 10th April, 1935. At the sale the decree-holders themselves purchased the same. On that date the Court directed the matter to be brought up on the 15th May, 1935 for confirmation of the sale. On the 10th May, 1935, that is to say, just within 30 days of the date of the sale, an application v/as put in on behalf of the decree-holders auction-purchasers for setting aside the sale. In that application the decree-holders auction-purchasers stated that they had received the decretal amount, together with the compensation payable under the provisions of sec. 174 (1) of the Bengal Tenancy Act, out of Court from the judgment-debtor and they wanted the sale to be set aside. Two things ought to be noticed in this connection, that the application was not by the judgment-debtor and the money required to be paid to the decree-holders auction-purchasers under the provisions of sec. 174 (1) was not deposited in Court by the judgment-debtor. On receipt of this application the Court directed it to be put up on the 15th May, 1935, the date for the confirmation of the sale. The judgment-debtor's son, Babu Barada Prasanna Majumdar, is a pleader of the Court. He appeared in the Court and the Court asked him to make an application on behalf of the judgment-debtor under the provisions of sec. 174 (1), but Barada Babu stoutly refused to accede to that prayer. He said that it did not matter at all in the least to the judgment-debtor as there had been already a compromise, and he said that a written application is not necessary, that an application which had been filed by the decree-holders, to which the judgment-debtor had consented, and his consent is to be taken as an oral application on behalf of the judgment-debtor. The decree-holders' pleader to whom the money was paid out of Court, it appears, submitted to the Court that he consented to receive the money from the judgment-debtor and to make the application in Court on certain representations of Barada Babu, which representations, he submitted, were not correct. The decree-holders' pleader to whom the money was paid out of Court, it appears, submitted to the Court that he consented to receive the money from the judgment-debtor and to make the application in Court on certain representations of Barada Babu, which representations, he submitted, were not correct. This further statement which I have made does not appear in the order which is the subject-matter of this revision, but appears from the counter-affidavit which has been filed in this Court. The Court then went into the question as to whether the pleader of the decree-holders auction-purchasers had been prevailed upon by Barada Babu by mis-representation to accept the money from him and to file the application which I have referred to above. The Court did not decide this point, but proceeded on different grounds. The Court said that the procedure to set aside a rent sale is laid down in sec. 174 of the Bengal Tenancy Act, and that procedure cannot be departed from in any circumstances. He remarked that after a sale had taken place, there can be no scope of a certification by the decree-holder that his decree has been satisfied and for getting rid of the sale in that way, and that the sale could only be got rid of by an appropriate proceeding under Or. 21, r. 89 or Or. 21, r. 90 of the CPC where the sale is under the CPC and, under the provisions of sec. 174 (1) or sub-sec. (3), where the sale is under Chap. XIV of the Bengal Tenancy Act, and in support of this proposition he has relied upon the decision of the Judicial Committee in the case of Seth Nanhelal v. Umrao Singh L.R. 58 IndAp 50 : S.C. 35 C.W.N. 381 (1930). In my judgment the Court below has overlooked certain fundamental principles of law and the question whether this sale is to be set aside or not cannot be determined without entering into certain questions of fact which I will indicate later on, after having laid down the principles of law in matters of this description. 2. The procedure laid down by the statute for setting aside a rent sale is the procedure laid down in sec. 174(1) and sec. 174 (3) of the Tenancy Act. It is not necessary to deal with sec. 174 (3) in this case. 2. The procedure laid down by the statute for setting aside a rent sale is the procedure laid down in sec. 174(1) and sec. 174 (3) of the Tenancy Act. It is not necessary to deal with sec. 174 (3) in this case. Sec. 174 (1) says that the judgment-debtor or any person whose interests are affected by the sale may, at any time within 30 days from the date of the sale, apply to the Court to set aside the sale on his de-positing (a) for payment to the decree-holder the amount recoverable under the decree up to the date when the deposit is made with costs, (b) for payment to the auction-purchaser as penalty a sum equal to 5 per cent. of the purchase money, but not less than Re. 1. This is the normal procedure to get a rent sale set aside by making a payment, but it is an undoubted principle of law that where a Court has general jurisdiction, the parties to a proceeding can by agreement adopt a different procedure--procedure quite contrary to the ordinary cursus curiae, and the Court is bound to give effect to such an agreement. This principle has been laid down in two decisions of the Judicial Committee of the Privy Council, namely, in the case of Henry Peter Pisani v. Her Majesty's Attorney-General for Gibrolter L.R. 6 P. C. 515 (1871) and in the case of Sadasiva Pillai v. Ramalinga Pillai L.R. 2 IndAp 219 : S.C. 15 B. L.R. 383 (1875). Here the auction-purchasers were the decree-holders themselves: Therefore after the sale there were no other persons either interested in upholding the sale or affected by the sale, except the judgment-debtor and the decree-holders and they were the only persons interested in any controversy or any question with regard to the confirmation or setting aside of the sale. And in my judgment it was open to them by an agreement to substitute a new procedure for the purpose of setting aside the sale. If there was really a consent between the decree-holders auction-purchasers and the judgment-debtor, the sale has to be set aside, although the payment is out of Court to the decree-holders auction-purchasers or their pleaders of the amount due under the decree and the compensation or penalty payable under cl. (b) of sec. If there was really a consent between the decree-holders auction-purchasers and the judgment-debtor, the sale has to be set aside, although the payment is out of Court to the decree-holders auction-purchasers or their pleaders of the amount due under the decree and the compensation or penalty payable under cl. (b) of sec. 174 (1), and that the decree-holders, and not the judgment-debtor has brought that fact to the notice of the Court and has asked for the sale to be set aside. I do not see on what principle could the Court refuse to set aside the sale, in the circumstances, if there was the said agreement. 3. I do not see anything in the case of Seth Nanhelal v. Umrao Singh L.R. 58 IndAp 50: S.C. 35 C.W.N. 381 (1930) which affects the view which I am taking. In that case the auction-purchaser was a stranger. After the sale an application under Or. 21, r. 90 of the CPC had been made by the judgment-debtor to set aside the sale. It seems that no notice had been issued on the stranger auction-purchaser of this application, and while this application was pending, the decree-holders and the judgment-debtor adjusted their decree, and the decree-holders put in an application under Or. 21, r. 2 for recording the said adjustment with a prayer that the sale is to be set aside, according to the said adjustment. The Court of first instance rightly rejected this application because the result would have been to affect the auction-purchaser who was a stranger and who had not agreed to that course being followed. The High Court reversed the decision and the matter was taken up to their Lordships of the Judicial Committee. The Judicial Committee examined the provisions of Or. 21, rr. 89, 90 and 92, and said in one part of their judgment that after the sale, the sale could only be set aside by invoking either the provisions of Or. 21, r. 89 or Or. 21, r. 90. But at page 56 of the report it was thus observed: Their Lordships are unable to concur in the reasoning. 21, rr. 89, 90 and 92, and said in one part of their judgment that after the sale, the sale could only be set aside by invoking either the provisions of Or. 21, r. 89 or Or. 21, r. 90. But at page 56 of the report it was thus observed: Their Lordships are unable to concur in the reasoning. In the first place Order 21, Rule, 2, which provides for certification of an adjustment come to out of Court clearly contemplates a stage in the execution proceedings when the matter lies only between the judgment-debtor and the decree-holder, and when no other interests have come into being. When once a sale has been effected a third party interest intervenes, and there is nothing in this rule to suggest that it is to be disregarded. that is to say, their Lordships of the Judicial Committee said there that where a third party interest had intervened, that is, when the auction-purchaser was a stranger and not a decree-holder, then his interest is not to be disregarded by following the procedure laid down by Or. 21, r. 2. Then they make the general observation that " the only means by which the judgment-debtor can get rid of a sale, which has been duly carried out, are those embodied in r. 89." In that case, if the auction-purchaser had been the decree-holder himself and if he consented to the sale being set aside by a procedure which their Lordships of the Judicial Committee remarked in Sadasiva Pillai's case L.R. 2 IndAp 210; S.C. 15 B. L.R. 383 (1875) to be contrary to the ordinary cursus curiae, I do, not see why the sale should not be set aside. The view which I am taking is in accord with the observations of the Lahore High Court, although those observations are obiter, in the case of Gulab Singh Bhugwan Singh v. Kishan Singh Man Singh ILR 15 Lab. 801 (1934). The question of fact which has therefore to be determined in this case before the matter can be disposed of is this: whether the decree-holders or their pleader did consent to the procedure that has been followed in this case in having the sale set aside. 801 (1934). The question of fact which has therefore to be determined in this case before the matter can be disposed of is this: whether the decree-holders or their pleader did consent to the procedure that has been followed in this case in having the sale set aside. If that consent was procured from the decree-holders or their pleader by fraud or mis-representation in material particulars by Barada Babu, the son of the judgment-debtor, that consent would be no consent and the sale could not be set aside by following the procedure which has been adopted in this case, but if that consent had not been so procured, that is' to say, if the decree-holders auction-purchasers and the judgment-debtor agreed to the procedure that has been followed in this case to have the sale set aside, the Court was bound to give effect to that agreement and to set aside the sale on the procedure which has been adopted. As that question of fact has not been investigated, the Court below would investigate that question of fact after giving both parties opportunity to lead evidence. 4. The result is that the order of the Court below is set aside and the case remanded to that Court in order that it may be disposed of in the light of the observations I have made above. The costs will abide the result: hearing-fee being assessed at one gold mohur.