Sarbeswar Padhan vs Rai Saheb Ganesh Chandra and Others

Panigrahi, C.J.—The judgment-debtor in a rent suit applied to have the rent sale set aside on the ground of fraud, material irregularity in the proclamation, and also on the ground that one of the judgment-debtors purchased the property in the name of the decree-holder. The decree-holder purchased 4 acres 21 decimals of land for Rs. 471- and it is admitted that the rental for the land is Rs. 21/7/0 only. The trial Court found that fraud had been practised in bringing about the sale and that there was no service of process on the judgment-debtor. He accordingly directed that the sale should be set aside. On appeal the lower appellate Court took the view that as the petition purported to be one u/s 227 of the Orissa Tenancy Act and as the facts proved fell u/s 228, the Petitioner was not entitled to any relief. The appellate Court also found, agreeing with the view of the trial Court, that notices of sale proclamation had been suppressed and that there was fraud in bringing about the sale. If these facts are established, the Court is not barred furor giving relief to the applicant, u/s 228. It is the function of the Court to find whether a wrong has been committed and whether the law provides a remedy and it does not matter what section is cited in support of the application. I would, accordingly, set aside the order under revision and restore that of the trial court. The revision succeeds, and the sale is set aside.