P L D 1967 Dacca 732 (PLP)

The first question that falls to be determined, therefore, is whether in the face of the order passed by the learned Munsif for deposit of the sale dues etc. the payment of the said amount made by the judgment‑debtors petitioners to the decree‑holders auction‑purchasers out of Court could be regarded as valid. In support of his contention that such a procedure is permissible under the law, Mr. R. Huq has referred to a number of authorities. One of the authorities relied upon by him is the case of Banga Chandra Mozumdar v. Nanda Kumar Mozumdar (40 C W N 1402). Therein the learned Judge after referring to the principle laid down by the Privy Council in Henry Peter Pisani v. Her Majesty's Attorney‑General for Gibralter (L R 5 P C 515) and Sadasiva Pillai v. Ramalinga Pillai (L R 21 All. 219) that when the Court has a general jurisdiction, parties to a proceeding may by agreement adopt a procedure different from the ordinary procedure and the Court is bound to give effect to such an agreement has observed as follows:‑ `Here the auction‑purchasers were the decree‑holders themselves: Therefore after the sale there were no other persons either interested in upholding the sale or affected by the sale, except the judgment‑debtor and the decree‑holders and they were the only persons interested in any controversy or any question with regard to the confirmation or setting aside of the sale. And in my judgment it was open to them by an agreement to substitute a new procedure for the purpose of setting aside the sale. If there was really consent between the decree‑holders auction‑purchasers and the judgment‑debtor, the sale has to be set aside, although the payment is out of Court to the decree‑holders auction‑purchasers or their Pleaders of the amount due under the decree and the compensation or penalty payable under clause (b) of section 174 (1), and that the decree‑holders, and not the judgment‑debtor has brought that fact to the notice of the Court and has asked for the sale to be set aside. I do not see on what principle could the Court refuse to set aside the sale, in the circumstances, if there was the said agreement." The next case cited on behalf of the petitioners is Hemanta Kumar Debi and others v. Rajendra Kishore Nath Sarkar (A I R 1926 Cal. 1236) wherein the relevant proposition has been laid down in these terms:‑ "Where instead of actually depositing the money in Court for the satisfaction of the decree the decree was satisfied by an arrangement come to between the parties, the application by judgment‑debtor which otherwise comes under section 174 still falls under section 174." Proceeding the learned Judges has observed:‑ "I do not think that it is of any consequence that the money was not actually deposited in Court when the decree was satisfied by an arrangement come to between the parties." The next comes the case of Radharaman Choudhury v. Gulab Thakur and others (A I R 1950 Cal. 50) wherein too the same view was taken and it was held:‑ "Payment to the decree‑holder since the date of proclamation under clause (1) (b) of rule 89 need not be in cash or payment through Court. The payment may be in kind and may be outside the Court. If the entire decretal aunt has been so paid, there is nothing mo, to be deposited within the meaning of clause (b). Similarly, if a portion of the decretal amount only has been paid up, the deposit has to be made only of the balance of the decretal dues. I need only point out that so far as the instant case is concerned, the present opposite‑parties Nos. 8 and 10 were found by the learned Munsif in his order dated 17‑9‑62 to have had no interest in the disputed holding so that the parties really interested in the matter of the disputed deposit or payment were the decree‑holders auction purchasers on the one hand and the judgment‑debtors petitioners on the other. Mr. Ruhul Islam of course placed his reliance upon the case of Mofizuddin Muhurm and another v. Mofizuddin and others (38 C W N 334) but that decision, so far as t can see, can have no application in the facts and circumstances of the present case before me. Thus in view o the authorities discussed above I am of opinion that the payment of the necessary amount by the judgment‑debtors petitioners to the decree‑holders auction purchasers out of Court, even though the said amount had been directed to be deposited, was perfect in order and that the Court was bound to give effect to the satisfaction petition filed by the decree‑holders auction‑purchasers acknowledging receipt of the amount involved and praying for setting aside the sale on the basis of that payment. Turning now to the question whether the impugned order dated 4‑12‑62 passed by the learned Munsif was one refusing to set aside a sale it is hardly necessary to point out that the learned Munsif in express terms dismissed the Miscellaneous proceeding under section 174 (3) so that there appears to be no room at all for an argument that this was not an order refusing to set aside the sale. Even if there were room for any such argument, reference need only be made for a complete reply thereto to the case of Debendra Nath Goldar and others v. Gopal Chandra Das and others (42 C W N 128) as well as the case of Haji Muhammad Kazibulla Mondal and others v. Humayun Reza Chowdhury and another (42 C W N 612). The principle laid down therein appears to be that if the effect of the order concerned amounts to refusal to set aside the sale, it must come within the purview of subsection (5) of section 174 of the Bengal Tenancy Act and as such an appeal would lie against the same. It only remains to consider the view taken by the learned Subordinate Judge that the order of the learned Munsif dated 4‑12‑62 was not appeal-able. This appears to me to be clearly erroneous for the simple reason, as has already been made clear above, that by this order the learned Munsif expressly dismissed the case of the petitioners under section 174 (3) for setting aside the impugned sale. It is true that by an earlier order, i.e. the order dated 15‑11‑62, the learned Munsiff directed the fact of full satisfaction certified by the decree‑holders auction purchasers to be noted in the Register, which no doubt can be construed as having effect of making his order dated 17‑9‑62 final and thus setting aside the impugned sale but by his order dated 4‑12‑62, already referred to above, that order may be regarded as having been vacated by clear implication which may be presumed to have been done by the learned Munsiff in exercise of his inherent powers under section

151. Whether the exercise of inherent powers under section 151 in the circumstances of the case was or was not justified is a different question. That does not affect the point with which I am concerned now. In my opinion, therefore, the learned Subordinate Judge was wrong in holding that the order of the learned Munsif dated) 4‑12‑62 was not appeal-able. From the foregoing discussions it is clear that the learned Appellate Court has failed to exercise a jurisdiction legally vested in him and in that view of the matter the appellate order passed by him as much as the order of the learned Munsif dated 4‑12‑62 are liable to be set aside. Before conclusion I would like only to add that even if I were to take the view that the said order of the learned Munsif was not appealable, I would still have, in view of the facts and circumstances disclosed in the present instance, proceeded to rectify the illegality committed by the learned Munsif by exercising my revisional jurisdiction under section 115 of the Code of Civil Procedure even suo motu. It may be mentioned that an alternative petition to that end also has since been filed on behalf of the judgment‑debtors petitioners. Whatever that may be, the revisional application must succeed. The Rule is accordingly made absolute with costs and the appellate order of the learned Subordinate Judge and the order of the learned Munsif dated 4‑12‑62 are set aside. Let the records be sent down expeditiously. S. Q. Rule made absolute.