Authored By : William Comer Petheram, Beverley

William Comer Petheram, C.J. and Beverley, J.

1. This is a second appeal from an order setting aside asale in execution of a decree.

2. The order in question purports to have been made underSection 312 of the Code, and a preliminary objection has been raised that,under the provisions of the last paragraph of Section 588, no second appealwill lie. This was decided by a Full Bench in the case of Nana Kumar Roy v.Golam Chunder Dey I.L.R. Cal. 422. The learned pleader for the appellantaccordingly asks us to treat the appeal as an application under Section 622 ofthe Code, on the ground that the lower Courts had no jurisdiction to make andaffirm an order under Section 312, inasmuch as the petitioner was not a personwho was competent to apply to have the sale set aside under the provisions ofSection 311. In support of this contention, the learned pleader relies on thedecision of the Full Bench in the case of Asmutunnissa Begum v. Ashruff AliI.L.R. Cal. 488.

3. The facts appear to be briefly as follows : The decree,in execution of which the tenure was sold, was a decree for arrears of the rentof the tenure itself, and was made on 25th June 1892. On 20th March 1893, thejudgment-debtor sold the tenure to the petitioner. On 21st July 1893,application was made by the decree-holder to execute the decree, and on 27thNovember the tenure was put up to sale and purchased by the decree-holderhimself.

4. The tenure itself having been put up to sale in executionof a decree for arrears of the rent thereof, we are of opinion that the FullBench case of Asmutunnissa Begum v. Ashruff Ali I.L.R. Cal. 488, which isrelied on, will not apply, and that the petitioners property having been sold,he was a person entitled to apply to have the sale set aside under Section 311of the Code-Panye, Chunder Sircar v. Hur Chunder Chowdhry I.L.R. Cal. 496. Thatbeing so, the lower Courts had jurisdiction to entertain the application underSection 311.

5. Nor, we may add, does the appellant appear to us to beentitled to any relief upon the merits. It appears that, about a month afterhis purchase, the petitioner executed a kabuliyat for this tenure in favour ofthe appellant, as well as a kisibandi for Rs. 270 on account of arrear rents,and it is alleged that the petitioner, after the sale, paid to the appellantRs. 95 out of the first instalment due in February 1894. The kistbandi issilent as to the decree, but there can be little doubt that it was intended tosupersede it. It is found by both the lower Courts that the sale was afraudulent one, and carried out without the knowledge of the petitioner. Underthese circumstances, we think there is no ground for our interference underSection 622. The appeal is dismissed with costs.

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Pudmo Lochun Mondol and Ors. vs. Aubhoya Dassi (10.06.1895 -CALHC)