P L D 1963 Dacca 872 (PLP)

2. The learned Munsif found that the judgment‑debtors intentionally defaulted in payment of rent and obtained a con clusive decree in collusion with the decree‑holders; that the judgment‑debtors auction‑purchased in the benami of Montosham uddin Ahmed; that the application was not barred by limitation; that fraud was committed by suppressing summons; that most valuable property was sold for inadequate price and in this view of the matter set aside the sale.

3. On appeal by Montoshamuddin Ahmed, however, the lower appellate Court held that as the application under section 174 (3) of the Bengal Tenancy Act was in fact one under section 173 (3) of the Bengal Tenancy Act the appeal was incom petent and in this view of the matter dismissed the appeal.

4. As against the aforesaid judgment and order, Montosham uddin the alleged auction‑purchaser, has preferred the present second miscellaneous appeal and also filed an alternative applica tion under section 115 of the Code of Civil Procedure. It may be pointed out at the very outset that the appeal before me is incompetent and as such it is dismissed.

5. Now the question in the Civil Revision before me is whether the lower appellate Court was correct in holding that the appeal before him was incompetent.

6. It is contended on behalf of the petitioner that in view of the provisions of subsection (3) of section 173 of the Bengal Tenancy Act the under‑tenant has no locus stand to file an applica tion under the said section but only the decree‑holder or any other person interested in the sale may apply for setting aside the sale when a judgment‑debtor purchases by himself or through another person and the Court may on that application set aside the sale and direct re‑sale and if there be any deficiency of price which may happen on the re‑sale and all expenses attending it shall be paid by the judgment‑debtor. It is contended on behalf of the petitioner that the under‑tenants are not interested in the sale but their interests are affected by the sale and as such the application at their instance is incompetent under section 173 of the Bengal Tenancy Act. It has been further contended that section 174 provides that the judgment‑debtor or any person whose interest is affected by the sale may file an application for setting aside the sale, and when the application is by the judgment‑debtor or any person namely in the present case the under‑tenants whose interest is affected by the sale shall apply to the Court on depositing certain amount as provided by that section but section 173 does not provide for depositing of the sale price and other incidental expenses but all that it has provided is that on the re‑sale the judgment‑debtor purchaser shall have to make up the deficit which may happen on the re‑sale and all the attending expenses.

7. Apparently, the aforesaid argument seems to be plausible, because if the purchase be by one or more of the judgment‑debtors sanami or benami the under tenancy cannot be annulled by such purchaser or purchasers as the case may be. Furthermore, mere statement in an application under section 174 (3) of the Bengal Tenancy Act for setting aside the sale the judgment‑debtor collusively auction‑purchased in the benami of certain person, does not necessarily convert the application one under section 173 of the Bengal Tenancy Act inasmuch as in order to prove fraud this assertion may be made in an application under section 174 (3 of the Bengal Tenancy Act. I have been taken through the application and also the findings arrived at by the Trial Court and I find that the allegations of fraud were made on the ground amongst others, that in order to avoid the under tenancy the judgment‑debtors defaulted intentionally in payment of the rent and obtained a fraudulent and collusive decree in collusion with the decree‑holders and others and subsequently purchased in the benami of another person. So, this assertion in the application is not an assertion under section 173 of the Act but is an assertion under section 174 (3) of the Bengal Tenancy Act. Because the allegation of benami purchase was made to prove their case of fraud committed by the judgment‑debtor and the decree‑holders and others in publishing and conducting the sale. Hence, I find that the application is one under section 174 (3) of the Bengal Tenancy Act and the appeal preferred before the lower appellate Court is competent.

8. Be it noted here that if the purchaser be found benamidar of the judgment‑debtors then the right of the under‑tenants are entitled to adequate declaration though they may not succeed on other grounds. I also keep the question whether, the application be found both under sections 173 and 174 of the Bengal Tenancy Act, on the termination of the original one proceeding it can be split up into two proceedings by holding that both appeal and revision will lie thereby depriving the aggrieved party the major right by way of appeal on one of the counts and creating anamolies.

9. The rule being Rule No. 893 of 1959 is made absolute without any order as to costs. The order complained of is set aside and the case is sent back to the lower Appellate Court for disposal of the appeal in accordance with law and in the light of the observation made above. S. B./A. H. Appeal remanded.