P L D 1960 Dacca 130 (PLP)

6. It appears that the learned pleader, for the petitioner as well as the Court below were in total misconception, of the real position in law which resulted into this confusion. It is no doubt true that Order IX, rule 9, is applicable to suits and by its own force it does not apply to the present application, but section 141 of the Code of Civil Procedure makes it applicable to the present proceeding. Section 141 of the Code provides: "The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceed ings in any Court of civil jurisdiction." It has been held in a series of cases that the procedure provided in the Code in regard to a suit shall be followed in all proceedings, means in all independent proceedings such as insolvency proceeding, probate proceeding, guardianship and so forth and it has got no application to an execution proceeding.

7. Now the question is whether an application under sec tion 173 (3) of the Bengal Tenancy Act for setting aside the sale on the ground of a purchase by one or some of the judgment‑debtors in the benami of others is an application in the execution proceed ing. In the case of Abdul Alim v. Sambhu Nath Pal and others (5 D L R 163), a Division Bench of this Court to which decision I am a party held that when a sale became absolute, the execution proceeding terminated as there is nothing to be executed and delivery of possession of the property purchased in the execution of the decree was not a question relating to execution, discharge and satisfaction of the decree coming under section 47 of the Code of Civil Proce dure. Under section 174‑A of the Bengal Tenancy Act, a sale becomes absolute after thirty days of the sale and when an appli cation under section 174 (1) of the Bengal Tenancy Act is filed, then, after the dismissal of that application, the sale becomes absolute. Therefore, after the sale has become final, the execution proceeding has terminated and there is nothing left to be executed, and the subsequent application under section 173 (3) of the Bengal Tenancy Act for setting aside the sale on the ground of purchase by the judgment‑debtors is not an application in execution though it is an application for setting aside a sale in execution of a decree. In the case of Juran Chandra Mondal and others v. Sushila Debi and others (7 D L R 382), I have held that an application under section 173 of the Bengal Tenancy Act by the judgment‑debtor is not an application relating to execution, discharge and satisfaction of the decree inasmuch as it is not between the parties to the suit but between the judgment‑debtors or between the judgment‑debtor and the auction‑purchaser who is not a representative either of the decree -holder or of the judgment‑debtor. Therefore, in any view of the matter, an application under section 173 (3) of the Bengal Tenancy Act is an application under the special provision of the Bengal Tenancy Act and it is an independent proceeding and not an execution proceeding and the provisions of Order IX, rule 9, read with section 141 of the Code of Civil Procedure, are applicable to such an application.

8. Mr. Banik for the opposite‑parties was under the impression that the original application was one under section 174 (3), Bengal Tenancy Act, and on that impression he argued throughout that Order IX, rule 9, does not apply to the order of dismissal for default of such an application, as the application under Order XXI, rule 90, is an application for setting aside the sale and is in the nature of execution proceeding, so an application under sec tion 174 (3) of the Bengal Tenancy Act is an execution proceeding and, as such, Order IX, rule 9, is not applicable. In support of his contention, Mr. Banik cited the case of Dasarathy Chakravarty v. Maharaja Khaunish Chandra Roy (A I R 1927 Cal. 938), where B. B. Ghose, J., following the decision of the Privy Council in the case of Thakur Pershad v. Sheikh Fakirulla (22 I A 44); held that an application under Order XXI, rule 90, is a proceeding in execution and Order IX, rule 9, does not apply if such an application is dismissed for default. In that case, it was argued on behalf of the appellant that the Privy Council decision in Thakur Pershad's case should be confined to an application for execution, but their Lordships did not accept this contention and replied : "But the case of Hari Charan Ghose v. Manmatha Nath Sen (18 C W N 343) is a clear answer to this conten tion." But in the case of Diljanmihha Bibee v. Hemanta Kumar Roy (A I R 1916 Cal. 61), a Division Bench of the High Court held that an applica tion under Order XXI, rule 90, is not an application for execution but a miscellaneous proceeding in which the auction‑purchaser is the principal interested party and, if such an application is dis missed for default, it can be restored under Order IX, rule 9, C. P. C., and that the case of Hari Charan Ghose has not decided to the contrary. Their Lordships further held that the Privy Council was dealing with an application for fresh execution after an application for execution had been struck off at the request of the decree‑holder without a permission to apply again and not with an application under Order XXI, rule 90 of the Code of Civil Procedure. Again in the case of Basarat Ulla Meah and others v. Reazuddin Mean arid others (I L R 53 Cal, 679), which is a case where an applica tion under Order XXI, rule 90, to set aside the sale was dismissed for default of both the parties and their Lordships held that the procedure in Order IX, rule 4, which applies to suits did not become applicable to a proceeding under Order XXI, rule 90, by force of section 141 of the Code, but there was nothing to prevent the petitioner from making a fresh application under Order XXI, rule 90, subject to the law of limitation. In that case, Page, J., held that, if an application under Order XXI, rule 90, is dismissed for default for non‑appearance of either of the parties, that is not disposal of the application but only refusal to take into considera tion the application filed in the absence of the parties and so there is no bar in filing a fresh application subject to the law of limitation. But the same Judge (Page, J.), in the case of Basanta Kumar Adak v. Khirode Chandra Ghose (I L R 55 Cal. 616), held: "The position is entirely different where the application under Order XXI, rule 90, is dismissed either on the merits, or when the applicant does not appear but the opposite‑party appears and is ready to contest the application. In either of those circumstances, in my, opinion, the order dismissing the application to set aside the sale is an order `refusing to set aside a sale' " and, therefore, appealable under Order XLIII of the Code of Civil Procedure. In the case of Ansar Ali v. Bir Sankar Dutta Tewari (33 C W N 392), Mukherji, J., held that there was no distinction in principle between the two and, therefore, the order is appealable under Order XLIII of the Code of Civil Procedure. In the case of Haji Mohammad Kazibulla Mondal and others v. Humayun Reza Chowdhury and another (42 C W N 612), Edgley, J., held that dismissal for default for non -appearance in an application under section 174 (3) of the Bengal Tenancy Act and dismissal on merit has got the same effect.

9. Now the question arises whether the application for setting aside the sale under Order XXI, rule 90, is an independent appli cation or an application in the execution proceeding. The view taken by this Court is that after the sale the execution proceeding terminates and there remains nothing to execute. Under the Civil Procedure Code, an application for setting aside the sale under Order XXI, rule 90, is to be filed within 30 days and under rule 92 the sale is to be made absolute after the dismissal of the application under rules 89 and

90. Therefore, the application under Order XXI, rule 90 of the Code of Civil Procedure may or may not be held to be one in execution proceeding because the sale has not become absolute and the execution proceeding has not yet terminated. But in an application for setting aside a sale under section 174 (3) of the Bengal Tenancy Act, different consideration may arise because such an application for setting aside the sale may be filed under section 174 (3) of the Bengal Tenancy Act within six months from the date of the sale and, under section 174‑A, the sale becomes absolute after thirty days of the sale or after the dismissal of the application filed under section 174 (1) of the Bengal Tenancy Act within 30 days from the date of the sale. So, when an application under section 174 (3) of the Bengal Tenancy Act is filed, the execution proceeding may have terminated and there is nothing left for execution of the decree. There is this difference between an application under Order XXI, rule 90, and an application under section 174(3) of the Bengal Tenancy Act. Whether such an application under section 174 (3) is an application in execu tion proceeding I am not called upon, in this case, to decide but, as argument was advanced by Mr. Banik till the end of the hearing of the case under a wrong impression and as he contends that a similar view may be taken in respect of an application under section 173 (3) of the Bengal Tenancy Act, I referred to those cases relied on by Mr. Banik. But, at the same time, I cannot refrain from referring to the decision of the same High Court, namely, Calcutta High Court, in the case of Kamala Kanta Chattopadhya v. Niharika Debi and others (A I R 1941 Cal. 559), where Henderson, J., relying on the case of Diljanmihha Bibee v. Hementa Kumar, held as follows: "An application under section 174, Bengal Tenancy Act, not being a proceeding in execution within the meaning of Order XXIII, rule 4, section 141 applies and, therefore, an application to record a compromise arrived at in the course of an application under section 174 is competent under Order XXIII, rule 3". In A I R 1516 Cal. 613=19 C W N 758, it is held that an appli cation under Order XXI, rule 90 of the Code of Civil Procedure is not an application for execution.

10. But the cases relied on by Mr. Banik are cases under Order XX1, rule 90 of the Code of Civil Procedure and not cases under section 174 (3) of the Bengal Tenancy Act in respect of which different consideration_ may arise. Whatever may be the position in respect of an application under section 174 (3) of the Bengal Tenancy Act, an application under section 173 (3) is not an application in execution proceeding. It is an independent proceed ing under the special provision of the Bengal Tenancy Act.

11. In the "circumstances, I think the pleader of the petitioner has wrongly conceded that Order IX, rule 9, read with section 141 of the Code of Civil Procedure, is not applicable to the present case and the learned Munsif.is wrong in holding that the application for restoration of the Miscellaneous Case dismissed for default was neither maintainable under Order IX, rule 9, nor under section 151 of the Code of Civil Procedure.

12. Even accepting that an application under section 173 (3) of the Bengal Tenancy Act is an application relating to execution, it does not come under section 47 of the Code, as it is not between the parties to the suit and, as such, it is not appealable, as the Bengal Tenancy Act does not provide for any appeal. Therefore, the only course open to the party, whose application for setting aside the sale was dismissed for default, is to invoke the inherent jurisdiction of section 151 of the Code of Civil Procedure, as the case does not directly come under Order XLVII of the Code of Civil Procedure to enable the petitioner to file an application for review. In the circumstances, I think the case should go back to the trial Court for consideration of the application for restoration of the Miscellaneous Case started by him under section 173 (3) of the Bengal Tenancy Act dismissed for default on 6‑2‑53.

13. The result, therefore, is that this Rule is made absolute with costs and the case is sent back to the trial Court for consi deration of the application of the petitioner filed under Order IX, rule 9 of the Code of Civil Procedure according to law and in the light of the observations made above. K. B. A. Rule made absolute.