Patna High Court
Akhouri Prem Narain And Anr. vs Musammat Fahimunnissa And Ors. on 18 May, 1917
Equivalent citations: 40IND. CAS.662, AIR 1917 PATNA 481
JUDGMENT Atkinson, J.
1. This miscellaneous appeal comes before us from a decision of the District Judge of Gaya. The facts are shortly as follows:
2. The plaintiff obtained as against the appellant a decree for rent, the relationship of landlord and tenant existing between the plaintiff and the defendant. The holding of the tenant judgment-debtor out of which the arrear of rent was due was put up for sale and the plaintiff purchased it at the sale and became a decree-holder auction-purchaser. The tenant admittedly within the time limited by Section 174 of the Bengal Tenancy Act deposited in Court the amount due on foot of the decree, together with the other necessary charges, to satisfy the decree-holder's claim. The defendant applied to the learned Munsif to set aside the sale which had already been held. The Munsif declined to set aside the sale on the ground that the judgment-debtor had not lodged a sufficient amount by way of deposit in Court to satisfy the amount of the decree together with other charges. From the decision of the Munsif there was an appeal to the District Judge of Gaya. The learned Judge found as a question of fact that the amount deposited in Court by the judgment-debtor was ample and sufficient, and that in fact the amount deposited was in excess of the actual amount due under the decree plus other charges to the extent of Rs. 4-12-0. We think the learned Judge was entitled to examine the figures and test whether the calculation made by an officer of the Munsif's Court was correct for the purpose of ascertaining what was the proper sum to be deposited. The learned Judge did examine the figures and he found that the judgment-debtor had discharged and satisfied the obligation imposed upon him by Section 174 of the Bengal Tenancy Act.
3. The second matter which was raised both in the lower Appellate Court and here was the question as to whether an appeal lay from the order of the learned Munsif, refusing to set aside the sale under Section 174 consequential upon the deposit made under that section. The learned District Judge held on the authority of the case reported as Raghubar Dayal Sukul v. Jadu Nandan Missir 13 Ind. Cas. 365 : 15 C.L.J. 89 : 16 C.W.N. 736 that an appeal did lie; and accordingly he reversed the order of the learned Munsif, set aside the sale and restored the judgment-debtor to possession of the property.
4. We have been pressed with the argument that no appeal lies from an order dismissing an application under Section 174 of the Bengal Tenancy Act. There is some conflict on the authorities, but the general principle deducible appears to be from the more recent current of decision in the Calcutta High Court that as between a decree-holder and judgment-debtor when the decree-holder becomes the purchaser of the property offered for sale, that then the case is one arising between the parties to the suit and, therefore, an appeal lies under Section 47 of the Code of Civil Procedure from an order made, under Section 174 of the Bengal Tenancy Act. Section 143 of the Bengal Tenancy Act applies in express terms the provisions of the Civil Procedure Code to the special procedure provided for the recovery of rent as between landlord and tenant under the Bengal Tenancy Act, except in so far as the provisions of the Civil Procedure Code may be modified by express rule or the same are otherwise inconsistent with the provisions of the Act itself. Section 43 lays down the procedure that is required to be followed for the recovery of rent and the obtaining of a rent-decree. No doubt as I have said there is some conflict on the authorities touching the question raised for our decision, but I think the law as stated by us is consistent with the principle underlying the current of modern decisions in Calcutta.
5. Mr. Justice Mullick in this Court in a case reported as Razi-ud-Din Hossain v. Bendeshri Prasad Singh 36 Ind. Cas. 769 laid down as follows:
If the application is one entertainable under Section 174 of the Bengal Tenancy Act, there is no appeal at all.
6. That case, however, is distinguishable in its facts from the present case inasmuch as the auction-purchaser was a stranger and not a party to the suit; and clearly we think all the authorities recognise and decide that in a case where an auction-purchaser is not a party to a suit then no appeal lies against an order under Section 174, but if he is a party to the suit and is a decree-holder in fact that then Section 47 comes into play and an appeal lies it being a matter arising between the parties to the suit touching the execution, satisfaction or discharge of the decree. Therefore the case decided by Mr. Justice Mullick is distinguish-able in its features from the present case. The present case is one as between the decree-holder purchaser and the judgment-debtor. The case reported as Raghubar Dayal Sukul v. Jadu Nandan Missir 13 Ind. Cas. 365 : 15 C.L.J. 89 : 16 C.W.N. 736 expressly decided the point which we have now raised for our decision. The learned Judges in that case at page 92 say: It was pointed out by this Court in the case reported as Joytara v. Ram Krishna 7 Ind. Cas. 769 : 13 C.L.J. 257 : 15 C.W.N. 512 that the answer to the question whether an order in execution proceedings is within the scope of Section 47 of the Code of 1908 must depend upon its nature and contents. If it decides a question relating to the execution, satisfaction or discharge of the decree and if the decision has been given between parties to the suit, or their representatives-in-interest, the order of the Court falls within the scope of Section 47 and is a decree within the meaning of Section 2."
7. The same point was considered in a case reported as Sital Rai v. Nandalal 1 Ind. Cas. 304 : 11 C.L.J. 202 : 13 C.W.N and the importance of this decision is that it states what the law was with reference to orders made under Section 310 (a) of the old Code of Civil Procedure, and applies the same principle in the application of the law to orders made under Section 174 of the Bengal Tenancy Act. The head-note accurately interprets the effect of the decision as follows:
It cannot be affirmed as a general proposition of law either that an order under Section 174 of the Bengal Tenancy Act or under Section 310 (a) of the Civil Procedure Code is or is not appealable. The test is whether the question raised in the proceedings is one relating to execution, satisfaction or discharge of the decree and if the question is of this description, whether it arises between the parties to the suit or their representatives. If it so arises, the order is appealable.
8. Thus we think that in this case as the matter arose between the parties to the suit, an appeal did lie by reason of the application of the provisions of Section 47 of the Code of Civil Procedure to a proceeding under Section 174 of the Bengal Tenancy Act. The cases of Kishori Mohun Roy v. Sarndamani Dasi 1 C.W.N. 30 and Subh Narain Lall v. Goroke Prosad 3 C.W.N. 344 are no doubt inconsistent with and contrary to the decision arrived at by us in this case, but it undoubtedly appears that both these rulings have been dissented from and overruled by the case reported in 13 Calcutta Weekly Notes 591 Sital Rai v. Nandalal 1 Ind. Cas. 304 : 11 C.L.J. 202 : 13 C.W.N. 591 which corresponds with the case cited above in 11 Calcutta Law Journal 202.
9. We think that the learned Judge was quite right in entertaining the appeal and that he had jurisdiction to do so. We accordingly dismiss this action with costs.
Chapman, J.
10. I agree.