Sonaulla Sheikh and Others vs Sulochana Choudhury and Others

Ram Labhaya, Ag. C.J.

This petition of revision is directed against an order of the Additional Subordinate Judge of Dhubri, dated 26-4-52, by which he confirmed the order of the Munsiff of Dhubri rejecting the judgment-debtors'' petition for setting aside a sale in execution u/s 165 , Goalpara Tenancy Act.

The land was sold in execution or a rent decree to Maniruddin and Jafor Ali for a sum of Rs. 50/- and possession was delivered to the auction-purchasers. Sonaulla and six others applied for setting aside the sale oh 21-3-51. The decree-holder, the auction-purchasers and two other judgment-debtors were made parties to the application. The decree-holder had died before the institution of the proceeding for setting aside the sale. The learned Munsiff rejected the petition on the ground that the petition being against a dead man who was not represented, could not form the foundation of any proceeding. The order was upheld in appeal.

A preliminary objection has been raised to the competency of the revision petition. It is pointed out by the learned Counsel for the Respondents that a second appeal lay as the order of the learned Munsiff against which an appeal had been preferred, was one covered by Section 47, CPC and, as such, amounted to a decree.

The application for setting aside the sale was made u/s 165, Goalpara Tenancy Act (Act I of 1929). Under this section,

any person whose interests are affected by the sale may, at any time within thirty days from the date of the sale, apply to the Court to set aside the sale, on his depositing-- (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 five per cent of the purchase money, but not less than one rupee.

Clause (5) of Section 165 provides for an appeal against an order setting aside or refusing to set aside a sale. An appeal under this clause was preferred and has been disallowed, as stated above.

u/s 125 of the Goalbara Tenancy Act, 1929, the Local Government is authorised, with he approval of the Governor-General-in-Council, to make rules'' consistent with the Act declaring that any portions of the Code of Civil Procedure, 1908, shall not apply to suits or proceedings between landlord and tenant as such, or to any specified classes of such suits or proceedings, or shall apply to them subject to modifications specified in the rules. Clause (2) of the said section further provides that

subject to any rules so made, and subject also to the other provisions of this Act, the Code of Civil Procedure, 1908, shall apply to ail such suits or proceedings.

The learned Counsel for the Petitioner concedes that Section 47, Code of Civil Procedure, applies to execution proceedings in execution of rent decrees and that there has been no modification of the provisions contained in Section 47 for purposes of execution of rent decrees under the Goalpara Tenancy Act. He also agrees that the definition of a "decree" as given in the Code of Civil Procedure, is applicable. It follows that an order u/s 165, G.T. Act, 1929, deciding a question arising between the parties to the suit in which the decree was passed or their representatives, and relating to the execution, discharge or satisfaction of the decree, will be covered by Section 47 of the Code of Civil Procedure. The application was for setting aside a sale. The deposit required by Section 165, G.T. Act, 1929, is both for the decree-holder and the auction-purchaser. The question, therefore, that arose in the petition related to discharge, satisfaction and execution of the decree. It was also between the parties to the suit in which the decree was passed. The order would thus amount to a decree and a second appeal should lie.

The learned Counsel for the Respondents has relied on -- ''Mukimannessa Chowdhurani v. Rameswar Shukul'' AIR 1941 Cal 234 (A) a case in which a sale in execution of a rent decree was sought to be set aside u/s 174, Bengal Tenancy Act. Section 174, Bengal Tenancy Act, contains provisions analogous to those of Section 165, Goalpara Tenancy Acts. Mr. Bhattacharjee has no answer to the contention raised. He preys that the petition of revision be treated as an appeal from the appellate order. We hold, therefore, that the petition of revision is not competent.

In the circumstances of this case, we are not persuaded to treat the petition of revision as an appeal. Though the petition of revision was filed within the period of limitation, adequate court-fee has not been paid. The petition for setting aside the sale was admittedly against a dead person, and it was also put in long after the period of limitation had expired. We do not think we are justified in treating this petition of revision as an appeal.

The petition is dismissed. The Rule is discharged.

Deka, J.

I agree.