Calcutta High Court
Gopal Chunder Mitra vs Ram Lal Goshain And Ors. on 1 February, 1894
Equivalent citations: (1894)ILR 21CAL554
JUDGMENT
Ghose and Rampini, JJ.
1. This was a suit to set aside the sale of a tenure held in execution of a decree for arrears of rent and to recover possession of a two-thirds share thereof.
2. It appears that the tenure in question belonged to the defendants 4, 5 and 6. In execution of a money decree against the defendants 4 and 5, their interest in a two-thirds share of the tenure was sold and purchased by the plaintiff. The plaintiff, however, did not get his name registered in the zemindar's sherista, and the result was that when a default was made in the payment of the rent due to him, the zemindar brought his suit against the recorded tenure-holders only, the defendants 4, 5 and 6; and, having recovered a decree, caused the tenure to be sold, and at this sale the defendant No. 7 became the purchaser. The plaintiff subsequently made an application to the Court, which had held the sale, for setting it aside upon the ground of fraud and irregularity in the publishing and conducting the sale, and also upon the ground that the ostensible purchaser at the sale was but a benamidar for the judgment-debtor. The Court, however, rejected his application, and confirmed the sale, being of opinion that the allegations made by him were not substantiated. The plaintiff then brought the present suit for the purpose, as already mentioned, of having the sale set aside, and for recovery of possession of a two-thirds share of the tenure, upon the ground that the decree in the rent suit was fraudulent, and the sale in execution thereof irregular, and also that the purchaser at the sale was but a * benamidar for the defendant No. 4.
3. The Court of First Instance dismissed the plaintiff's case, being of opinion that although the defendant No. 7 was a benamidar for the judgment-debtor, still no case of fraud had been made out, and that the order of the execution Court was conclusive between the parties.
4. On appeal, the Sub-Judge has set aside the judgment of the Court of First Instance and decreed the plaintiff's suit, upon the simple ground that the defendant No. 7 is but a benamidar for the judgment-debtors. This we understand to refer to the defendant No. 4; for the case of the plaintiff' was that defendant No. 4 purchased the property in the benami of defendant No. 7, and the issue laid down in the Court of First Instance had reference to the defendant No. 4 only. The Sub-Judge has further expressed an opinion that the plaintiff being no party to the suit in which the decree was made, was not precluded from bringing this suit.
5. The present appeal is by the defendant No. 7.
6. The sale took place under the Bengal Tenancy Act, and the main question that has been discussed before us is as to the true construction of Section 173 of that Act, having regard to the fact found by the Court below that one of the judgment-debtors has purchased the property in the benami of the appellant. That section runs as follows:
(1) Notwithstanding anything contained in Section 294* of the Code of Civil Procedure, the holder of a decree, in execution of which a tenure or holding is sold under this chapter, may, without the permission of the Court, bid for or purchase the tenure or holding.
(2) The judgment-debtor shall not bid for or purchase a tenure or holding so sold.
(3) When a judgment-debtor purchases by himself or through another person a tenure or holding so sold, the Court may, if it thinks fit, on the application of the decree-holder or any other person interested in the sale, by order set aside the sale, and the costs of the application and order and any deficiency of price which may happen on the re-sale, and all expenses attending it, shall be paid by the judgment-debtor.
7. Upon the wording of the section, the question that arises is whether the sale is absolutely void, or is it only voidable. And there is a further question whether the Court which holds the sale is the only Court competent to determine whether the sale should stand or not.
8. Referring in the first place to the corresponding section in the Civil Procedure Code, viz., Section 294, which prohibits a decree-holder from purchasing, the words are that "no holder of a decree in execution of which property is sold shall, without the express permission of the Court, bid for or purchase the property," and in which the last paragraph is in the same words (substituting the word "decree-holder" for "judgment-debtor") as the corresponding paragraph in Section 173 of the Bengal Tenancy Act, it has been held in several cases in Bombay and Madras that the sale is not ipso facto void, but only voidable, if the decree-holder purchases without the sanction of the Court see Javherbai v. Haribhai I.LR. 5 Bom. 575, Chintamanrav Natu v. Vithabi I.L.R. 11 Bom. 588. And it has been held in a case in this Court, Mathura v. Das Nalhuni Lall Mahta I.L.R. 11 Cal. 731, that if a decree-holder purchases a property without the permission of the Court, it is a matter of irregularity in connection with the sale.
9. If the law has been correctly laid down in these cases, there can be very little doubt that when a judgment-debtor, as in Section 173, purchases the property sold, the sale is not absolutely void, hut may be avoided if the Court so thinks fit; and we do not think that the slight difference in the phraseology of the two sections prescribing the prohibition makes any difference as to the intention of the Legislature. It seems to us that when Section 173 prescribes that upon an application being made by a party interested, the Court may by order set aside the sale 'if it thinks fit," it means to leave it to the discretion of the Court, with reference to the facts of each particular case, either to set aside the sale or not. And if such a discretion is left to the Court holding the sale, it is obvious that the sale is not absolutely void, but only voidable.
10. Our attention has been called to two cases in this Court,- Rukhinee Bullubh v. Brojo Nath Sircar I.L.R. 5 Cal. 308, and Mahomed Gazee Chowdhry v. Ram Loll Sen I.L.R. 10 Cal. 757. In the first-mentioned case, the sale was under Act X of 1877, which did not contain any provision giving power to the Court to set aside the sale as in Act XIV of 1882. In the other case, it was the decree-holder who sought to enforce his purchase by suit; and it was shown that he had applied for permission to bid, and the permission had been refused, and he then purchased the property in the benami of another person; and this Court held that he was guilty of an abuse of the process of the Court, and accordingly dismissed his claim.
11. Our attention has also been drawn to the prohibition that is contained in the putni Regulation against a defaulting putiudar purchasing at the putni sale, but we do not think that the language of that Regulation, or the decisions quoted before us as bearing upon it, help us in determining the question as to the construction of Section 173 of the Bengal Tenancy Act.
12. But is the Court holding the sale the only Court competent to determine whether the sale should stand or not, and does not a separate suit lie for the same purpose?
13. If the question were between the parties to the suit in which the decree was made, there could be very little or no doubt, having regard to Section 244 of the Civil Procedure Code, that a separate suit would not lie; but in this particular case the plaintiff was no party to the suit, and therefore he is not debarred by Section 244, Civil Procedure Code, from bringing a separate suit with a view to have it declared that the sale is absolutely bad, and has not passed any title to the purchaser. He sought to do so upon the ground of fraud, and if this had been substantiated, the Court might have declared that the sale was infructuous and passed no title to the defendant: but this ground was not made out. As to the other ground, viz., as to the purchase being benami, it has no doubt been proved; but still the question is whether the Court, other than the Court holding the sale, can declare the sale to be bad upon that ground, and can set it aside accordingly.
14. Section 173 prescribes both the prohibition and the remedy, and we are inclined to think (though the matter is not free from doubt) that the section is complete in itself. And it will be observed that it contemplates a re-sale, upon the sale which had already taken place being set aside, and any deficiency in the price and all expenses upon such re-sale being payable by the judgment-debtor. This indicates that the Court holding the sale is the proper Court to determine whether the sale should stand or not. If it determines the question in the negative, it has to put up the property again to sale. A Court, other than the execution Court, is not in a position to do so.
15. As bearing upon this question, we were pressed with an observation in the case of Mahomed Gazee Chowdhry v. Bam Loll Sen I.L.R. 10 Cal. 757, already referred to, with reference to Section 294 of the Civil Procedure Code; and that is to the effect; that the law provides two remedies-one by a regular suit, and the other by summary application to have the sale set aside. But it will be observed that this observation was based mainly upon the fact that, in the Code of 1877 the first paragraph of Section 294 prohibiting a purchase by the decree-holder existed without the last paragraph, which was subsequently introduced into the Code, providing that upon an application being made by any party interested, the sale might be set aside. The said observation may be correct (hut we express no opinion) with reference to a sale under the Civil Procedure Code, but it can hardly be applicable to a sale under the Bengal Tenancy Act, where the Legislature has, once for all, prescribed both the prohibition and the remedy.
16. It happens, however, in this case that the suit has been instituted in the same Court as held the sale, and the plaint may, therefore, be well regarded as an application within the meaning of Section 173 to set aside the sale. But that Court did not see fit to set aside the sale; and if we were called upon to exercise our discretion in the matter, we should not be prepared to hold that the sale should he cancelled. The defendant No. 4 who has purchased the property, though nominally a judgment-debtor, had no existing interest at the time of the previous suit and the sale; for his rights had then already passed to the plaintiff; and therefore there was nothing improper in his making the purchase. And it would appear upon the evidence noticed by the Munsif that the plaintiff was aware of the sale and was watching the proceedings to see whether the judgment-debtors would pay up the decree. That being so, we do not think that this is a case in which we should direct that the sale be set aside.
17. Upon all these grounds we are of opinion that the decree of the Court below should be set aside and that of the Court of First Instance restored. This order carries costs in all Courts.
* Decree-holder not to bid for or buy property without permission.
If decree-holder purchase amount of decree may be taken as payment.
[Section 294: No holder of a decree in execution of which property is sold, shall, without the express permission of the Court, bid for or purchase the property.
When a decree-holder purchases, with such permission, the purchase-money and the amount due on the decree may, if he so desires, be set-off against, one another, and the Court executing the decree shall enter up satisfaction of the decree in whole or in part accordingly.
When a decree-holder purchases, by himself or through another person, without such permission, the Court may, if it thinks fit, on the application of the judgment-debtor or any other person interested in the sale, by order set aside the sale; and the costs of such application and order, and any deficiency of price which may happen on the re-sale, and all expenses attending it, shall be paid by the decree-holder.]