Lakshmidar Mahanti vs Ratnakar Mahapatra and others

Lord Dunedin

On the 12th January, 1907, a person got a decree for arrears in respect of rents of lands in Orissa. In respect of that decree, the lands were sold on the 27th June, 1907, and on the 27th September, 1907, the father of the appellant, whom he now represents, was declared the purchaser. Within thirty days thereafter, the judgment debtor deposited the full sum and costs, and accordingly on the 23rd December, 1907, the sale was set aside under the terms of section 174 of the Bengal Tenancy Act of 1885. Against that setting aside an appeal was taken to the Collector, who reversed the judgment of the Deputy Collector and confirmed the sale. An appeal from his decision was taken to the Commissioner, who on the 15th July, 1908, upheld the decision of the Collector, and on the 16th February, 1909, a sale certificate was granted. On the 26th May, 1909, the present suit was raised in the Civil Court by the judgment-debtor, and the Subordinate Judge, taking the same view as the Commissioner had taken, by his decree dismissed the suit. An appeal was taken to the Calcutta High Court and the Calcutta High Court dealt with it as follows :-

"The point as to whether section 174 of the Bengal Tenancy Act applies to sale of a holding in Orissa is concluded by authority in the case of Barkal Parida v. Jogendra Nath Sen (1)decided in this Court,"

(1) (1911) 16 C.W.N. 311 = 11 I. C. 239 = 14 C.L. J. 168.

and they accordingly reversed the decree of the Subordinate Judge. An appeal has now been taken to His Majesty in Council against the decree of the High Court. It is, therefore, practically an appeal against the judgment in the case just cited. The whole point is this : The Bengal Tenancy Act as originally passed by section 1 (3) did not apply to the Division of Orissa; but by section 2 (2), it was contemplated that it might be eventually extended to Orissa, and it is there enacted :-

"When this Act is extended to the Division of Orissa or any part thereof, such of those enactments as are in force in that Division, or part, or, where a portion only of that Act is so extended, so much of them as is inconsistent with that portion, shall be repealed in that Division or part"

Besides that there is a general repealing section. In this section Act VIII of 1865 is not included among the Acts repealed. The Bengal Tenancy Act was extended to Orissa by order published in the Calcutta Gazette on 9th January, 1907.

Section 174 of that Act deals with applications to set aside a sale. It says :-

"Where a tenure or holding is sold for an arrear of rent due thereon, then at any time within thirty days from the date of sale, the judgment debtor may apply to have the sale set aside, on his depositing in Court . . . the amount recoverable under the decree "

and so on. Then it provides that there shall be an order setting aside the sale. It is quite obvious that those words apply to the facts in this case, because the amount was deposited within thirty days of the sale. The sale being in June 1907, was after the extension to Orissa of the Bengal Tenancy Act. Accordingly the whole argument really turns on this: that section 174 can only apply to suits that originate in the Civil Court, and cannot apply to suits that originate in the Collector''s Court under the law as it stood in Orissa before this section was introduced. Under the law as it stood in Orissa, under Act VIII of 1865 - the sections need not be gone through, because the result of them can be given quite shortly - the period is eight days for setting aside a sale like this instead of thirty.

The matter was dealt with by the Calcutta High Court in the judgment already cited. They say at page 312 of XVI Calcutta Weekly Notes :-

"It has been argued that if the intention of the Legislature was that the extension of any portion of the Bengal Tenancy may Act would by implication operate as a repeal of the provisions of Act VIII of 1865, mention would have been made of the latter Act in the first Schedule. In our opinion there is no force in this contention"

Than they go on to say it would be meaningless to hold that section 174 of the Bengal Tenancy Act has been extended to the Division of Orissa, but that it has no application to a sale held there under that Act. Their Lordships think that is plain common sense, and that to hold that section 174 did nob apply would really be to render the legislation meaningless.

They will therefore humbly advise His Majesty to dismiss the present appeal with costs; but they add that, inasmuch as it has been represented to them that the purchase money has not been returned, nothing that they are hare saying must be understood as in any way preventing an application to the proper Court in India for the return of the purchase money.