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Petitioner: ABDUL ALI MRIDHA VS Respondent: SURAT ALI MOLLAH
P L D 1960 Dacca 599
P L D 1960 Dacca 599
Before Ispahani, C. J. and Sattar, J
ABDUL ALI MRIDHA‑Petitioner
versus
SURAT ALI MOLLAH AND OTHERS‑Opposite‑Parties
Civil Rule No. 625 of 1957, decided on 21st December 1959.
Bengal Tenancy Act (VIII of 1885), S. 174 (3)‑Sale can be set aside partly‑Civil Procedure Code (V of 1908), O. XXI, r. 90. [Jatindranath v. Beni Mondal 3 P L R (Dacca) 405 overruled].
Under section 174 (3) of the Bengal Tenancy Act, 1885 a sale can be set aside in part. It cannot be laid down as a general proposition of law that when a sale is set aside on the ground of a material irregularity or fraud in publishing or con ducting the sale, the same should be set‑aside in its entirety, even though the application for setting aside is made by only one of the interested parties irrespective of other circumstances of the case. While generally speaking such should be the case, the facts of each case will determine whether this proposition should be modified in view of other circumstances, such as the question of limitation, res judicata etc., in respect of the claim of the other interested parties.
Jatindra Nath Mondal v. Beni Mondal and others 3 P L R Dacca 405 overruled.
Abed Ali Mondal v. Tohurennessa Bewa and others 4 P L R Dacca 277 ; Srimati Nirode Bala Deb Roy v. Monmohan Datta and others (1954) 6 D L R 559 and Kashem Ali Bepari v. Admi nistrator General of East Bengal and others P L D 1958 Dacca 320 affirmed.
Amullya Krishna Bandopadhya v. Dalip Kumar Roy Chowdhury and others 41 C W N 224 and Manmatha Nath Mukherjee v. Ziaul Huq and others 55 C W N 196 ref.
Ramesh Chandra Patranabis v. Birajsundari Gupta and others 32 C W N 519 dissented from.
Syed A. B. Mahmud Hussain for Petitioner.
Ahmed Sobhan for Opposite‑Party No. 1.
S. M. Amin Azhar for A. K. M. Nurul Islam for Deputy Registrar.
JUDGMENT
SATTAR, J.‑This Rule was issued by our learned brother Rahman, J., and came up for hearing before him but as, regarding one of the points raised before him, he found there was conflict of opinion in this Court he referred this case for decision by a larger Bench.
2. The facts relevant for the disposal of this Rule may be stated in a short compass as follows : Opposite parties Nos. 7 to 57 obtained a decree for arrears of rent in respect of a holding against the petitioner and the remaining opposite parties and/or their predecessors, in‑interest. In execution of the said rent decree the decree‑holder‑ opposite‑parties put up the holding to sale and it was auction‑purchased by opposite parties Nos. 7 to 45. The sale being confirmed, the said opposite parties took delivery of possession. Thereafter notices under section 167 of the Bengal Tenancy Act for the purpose of annulling encumbrances were served on or about 28‑3‑51. The present petitioner along with opposite‑party No. 4 then made an application for setting aside the sale under section 174 (3) of the Bengal Tenancy Act. The said sale‑set‑aside case was, however, later on disposed of on compromise. In accordance with the terms of the said com promise, all arrears of rent amounting to Rs. 664‑8‑0 were paid by the petitioner and opposite‑parties Nos. 4, 5 and 7 and they were granted a Kol karsha right in the disputed raiyati at an annual jama of Rs. 60. Thereafter another application under section 174 (3) of the Bengal Tenancy Act was filed by opposite parties Nos. 58 and 66 (Asmat Ali and Zobeda Klaatun) but it was not proceeded with and the same was dismissed for default on 3rd October, 1953. Thereafter on the 2at'; November 1953 the present application under section 174 (3) of the Bengal Tenancy Act was filed by opposite‑parties Nos. 1, 2 and 3. This sale‑set‑aside case was contested by the present petitioner. The learned Munsif, 1st Court, Patuakhali, who heard the said Miscellaneous Case dismissed the same by his order, dated 26th April, 1955. As against the said order, opposite‑party No. 1 filed an appeal which was heard by the Subordinate Judge, 3rd Court, Bakerganj, and the learned Subordinate Judge allowed the appeal and set aside the sale in its entirety. It is against this order that this Court was moved and the present Rule was obtained.
3. The first point that has been raised by Mr. Hussain who appears for the petitioner is that the learned Subordinate Judge was wrong in holding that opposite‑party No. 1 did not have notice of the sale beyond the period of limitation and thus setting aside the sale in question. The learned Subordinate Judge has, on a consideration of the evidence, come to the finding that there is no evidence on record that Asmat Ali on whom the notice of opposite‑party No. 1 Surat Ali in connection with one of the sale‑set‑aside cases was served was an employee of Surat Ali, opposite‑party No. 1. The learned Advocate contends that since it was stated in the peon's report that Asmat Ali was an employee of Surat Ali, it was for Surat Ali to show that Asmat Ali was not his employee. We are afraid we cannot agree with the contention of the learned Advocate. The finding referred to above is a finding of fact which cannot be interfered with in revision.
4. The second point urged on behalf of the petitioner is of importance and that occasioned the reference of this case to a Division Bench. It is contended that the learned Subordinate Judge was wrong in setting aside the sale in its entirety in view of the facts of this case. It has already been noticed that some of the judgment‑debtors applied before for setting aside the sale without success. The question that arises, therefore, is whether the entire sale in these circumstances can be set aside at the instance of one or some of the judgment‑debtors.
5. The contention on behalf of the petitioner that the sale should be set aside to the extent of the share of the petitioner or petitioners in the sale‑set‑aside case receives support in the decisions reported in 4 P L R (Dacca) 277, 6 D L R 559 and P L D 1958 Dacca 320. In the case of Abed Ali Mondal v. Tohurennessa Bewa and others (4 P L R (Dacca) 277), Ibrahim, J.; has held that under section 174 (3) a sale can be set aside either wholly or partly according as the interest of justice demands. The same view was taken by the learned Judge in the case of Srimati Nirode Bala Deb Roy v. Monmohan Datta and others ((1954) 6 D L R 559). The learned Judge in connec tion with this question observed as follows:
"The decisions of the Calcutta High Court are conflicting on the question whether a sale can or cannot be partially set aside. From those cited before me, it appears that the view taken in the more recent cases is that a sale can be partially set aside [Rampada Nag Modak v. Kanai Rai and others (44 C L J 167), Amullya Krishna Bandopadhya v. Dalip Kumar Roy Chowdhury and others (41 C W N 224) and Manmatha Nath Mukherjee v. Ziaul Huq and others (55 C W N 196). I am also of the same view. There can be no intelligible objection to a sale being partially set aside. Raiyati right is transferable. Court can sell the interest of one or more of the co‑sharer tenants of a holding. There is no reason why it should be held that it has no power to set aside a sale partially, where it is proved that it is bad in respect of some and good in respect of others. The contrary view leads to difficulties. If a previous application by one of the judgment‑debtors failed, should the sale be set aside in respect of him also on a subsequent application by another, even though the latter may be given relief without doing it ? The Court can of course set aside a sale in its entirety on the application of a single judgment‑debtor, but it cannot be insisted that it must do so in every case. When the auction- purchaser has acquired a good title against a judgment debtor, who can no longer assail it, neither principle nor justice demands that he should be compelled to part with it merely because he cannot hold his title against another."
In the case of Kashem Ali Bepari v. Administrator General of East Bengal and others (P L D 1958 Dacca 320), Murshed, J., on a review of some Calcutta decisions and the decisions in the above two cases has taken the view that a sale in execution of a decree can be held partly good and partly bad. He did not accept the view taken by Chowdhury, J., in the case of Jatindra Nath Mondal v. Beni Mondal and others (3 P L R (Dacca) 405), which supports the contrary view which has been canvassed before us by Mr. Ahmad Sobhan.
6. The main reason why Mr. Justice Chowdhury has dissent ed from the view taken by Mr. Justice Ibrahim is that under Order XXI, rule 90, C. P. C., a sale can be set aside on the ground of material irregularity or fraud in publishing or con ducting the sale. According to the learned Judge, the provision contained in Order XXI, rule 90, C. P. C., which is almost similar to the one contained in section 174 (3) of the Bengal Tenancy Act, contemplates setting aside of the entire sale.
7. Both the views taken in this Court receive support from some Calcutta decisions and they were relied upon by Mr. Justice Ibrahim and Mr. Justice Chowdhury for taking one or the other view. The view taken by Mr. Justice Ibrahim and Mr. Justice Murshed receives support in the case of Amullya Krishna Bando padhya v. Dalip Kumar Roy Chowdhury and others. In that case also some of the judgment‑debtors previous to the one who ultimately succeeded made an application for setting aside the sale but the same was dismissed. It was in this view of the matter that the learned Judges held that those judg ment‑debtors whose application for setting aside the sale was dismissed previously could not be allowed to have the benefit of the application made by another judgment‑debtor. The learned Judges, therefore, directed the sale to be set aside to the extent of the share of the applicants who filed the application in question for, setting aside the sale. In the case of Manmatha Nath Mukherjee v. Jiaul Huq and another, Guha, J., also took the same view and observed as follows:
"It is obvious, therefore, that there is some conflict of judicial opinion as regards the propriety or validity of setting aside a sale partially. To me it appears that generally a sale should be set aside or confirmed in its entirety, but this propo sition is subject to certain qualifications, as for instance, the bar of limitation, res judicata, etc."
8. The view that has been taken by Mr. Justice Chowdhury, on the other hand, receives support in the case of Ramesh Chandra Patranabis v. Birajsundari Gupta and others (32 C W N 519). The judgment in that case was delivered by Suhrawardy, J., who in that case observed as follows:
"As at present advised I am quite clear in my mind that Order XXI, rule 90, speaks of setting aside a sale in its entirety, if it is proved that it is bad on the ground of material irregularity or fraud ; and a sale which is affected by such defects cannot be set aside in part. An execution sale is either wholly good or wholly bad ; it cannot be good and bad at the same time."
It, however, appears that the learned Judge took a different view in an earlier decision and that decision was relied upon by the party whose contention was that an auction sale could be set aside in part also. That decision is reported in 44 C L J 167, where in support of the view that a sale can be set aside partially, it was observed as follows:
"On the main question it is said that the sale cannot be partially set aside. There is ample authority that this can be done: Khiarajrnal v. Daim I L R 32 Cal. 296 and Rajagopala Ayyar v. Ramanuja Chariar 1 L R 47 Mad. 288."
In the case reported in 32 C W N 519, Suhrawardy, J., however, distinguished the facts of that case by saying that in that case what was meant was that in the circumstances of that case the sale did not affect the right of the objecting party. There is another decision of the Calcutta High Court reported in 49 C W N 159 which also supports the view that a sale cannot be set aside partially. It may, however, be observed that in that case the point that arose for consideration was whether, when properties were sold separately in separate lots, the sale of each lot was a separate one. It was held that it was so and, in that view of the matter, the sale in respect of some of the plots was allowed to stand but was set aside in respect of others. The remark "Now, Order XXI, rule 90, speaks of setting aside a sale in its entirety, if it is proved that it is bad on the ground of material irregularities or fraud. A sale which is affected by such defects cannot be set aside in part, and it is immaterial that the person who applies to set it aside, is interest ed only in a fractional share of the property sold" is in the nature of an obiter.
9. On a consideration of the arguments advanced at the Bar and the decisions referred to above, we are of the view that a sale can be set aside in part. It cannot be laid down as a general proposition of law that when a sale is set aside on the ground of a material irregularity or fraud in publishing or conduct ing the sale, the same should be set aside in its entirety, even though the application for setting aside is made by only one of the interested parties irrespective of other circumstances of the case. While generally speaking such should be the case, the facts of each case will determine whether this proposition should be modified in view of other circumstances, such as the question of limitation, res judicata, etc., in respect of the claim of the other interested parties. As has been pointed out by ‑Mr. Justice Ibrahim, if this be not so, other complications will arise.
10. We, therefore, hold that in view of the facts and circum stances of this case, the sale should be set aside to the extent of the share of opposite‑party No. 1 Surat Ali Molla in regard to whom only the learned Subordinate Judge found that his claim for setting aside the sale was not barred by limitation.
11. The Rule, therefore, is made absolute and the order of the learned Subordinate Judge is modified to the extent that it will take effect so far as the share of opposite‑party No. 1 only and the sale will stand confirmed as regards the remaining share. In view of the facts of this case, we, however, direct that each party will bear its own costs throughout.
ISPAHANI, C. J.‑I agree.
K.B.A Rule made absolute.