P L D 1964 Dacca 155 (PLP)

Md. Yahya for the Opposite‑Parties Nos. 1‑‑

3. The short, but by no means simple, point upon which the decision of this revisional application hangs is whether a proceed ing under section 174, subsection (3) of the Bengal Tenancy Act is a proceeding in execution and it arises out of the following facts:

2. In Rent Suit No. 843 of 1941 the landlords, i.e., the decree‑holders, opposite‑parties, obtained a decree for arrears of rent against the present petitioner and his brother, both of whom were then minor, and in execution of that decree in Rent Execu tion Case No. 1775 of 1944 put up the defaulting holding to sale. The opposite‑parties Nos. 1‑3 made the auction‑purchase on 21‑12‑44 whereafter the sale was confirmed in due course. The petitioner attained majority in July 1956 and thereafter on 6‑8‑58 filed an application under section 174, subsection (3) of the Bengal Tenancy Act, registered as Miscellaneous Case No. 255 of 1958, for setting aside the aforementioned sale. That was dismissed for default on 29‑11‑58, whereafter an application under Order XLVII, rule 1, of the Code of Civil Procedure, being Miscellaneous Case No. 381 of 1958, was filed and this appears to have been allowed on compromise against some and ex parte against the rest on 22‑6‑

59. The above Miscellaneous Case No. 255 of 1958 was thus restored and, in due course, fixed for hearing on 26‑9‑59 on which date the sale was set aside ex parte. The opposite‑parties Nos. 1‑3 then filed an application purported to be under section 151 of the Code of Civil Procedure for setting aside the said ex parte order passed in Miscellaneous Case No. 255 of 1958. This was rejected on 16‑2‑60 by the learned Munsif. On appeal, the learned Subordinate Judge has reversed the decision of the trial Court treating the application under section 151, C. P. C., as one under Order IX, rule 13, C. P. C., and restored the said Miscellaneous Case No. 255 of 1958.

3. It is not at all in dispute, as has been rightly held by the learned Subordinate Judge as well that no appeal lies against an order passed under section 151 of the Code of Civil Procedure. The learned Judge has, however, construed the application pur ported to have been made under section 151 of the said Code as one falling under Order IX, rule 13 of the Code and, in that view of the matter, has on a detailed discussion of the relevant facts and circumstances, reversed the order of the learned trial Court. It is contended that if the provision of Order IX, rule 13 of the Code of Civil Procedure actually applies to a proceeding under section 174, subsection (3) of the Bengal Tenancy Act, there is nothing to complain against the decision of the learned Subor dinate Judge. The question whether the said provision is or is not applicable, again depends upon the determination of the point mentioned at the very outset i.e., whether such a proceeding is or is not a proceeding in execution. If it is, application of Order IX, rule 13, of the Code of Civil Procedure, by common consent is ruled out. If not, i.e., if it is an independent proceeding in the nature of an original proceeding, that shall by operation of section 141 of the Code of Civil Procedure attract the provision of Order IX, rule, 13, C. P. C. with the result that the order com plained of shall prevail as sound and legal.

4. Whether a proceeding in the nature of one under section 174, subsection (3) of the Bengal Tenancy Act is or is not a proceeding in execution, is a vexed question on which the autho rities are divided. This divergence, it is important to note, has grown mainly round the interpretation of section 141 of the Code of Civil Procedure and its application to a proceeding under Order XXI, rule 90 of the said Code. In fact, no direct autho rity bearing upon the question relating to a proceeding under section 174, subsection (3) of the Bengal Tenancy Act could be cited before me; and the learned Advocates on both sides advanc ed their conflicting arguments, relying analogically upon the autho rities on the nature of proceedings under Order XXI, rule 90 of the Code of Civil Procedure ending support to their respective contentions. There appears to be no direct decision of this Court either, on the point under consideration though there are quite a few cases relating to proceedings under section 173, subsection (3), of the Bengal Tenancy Act. The uniform view taken in those cases is that such proceedings, i.e., proceedings under section 173, subsection (3), are not proceedings in execution but original or independent proceedings to which, therefore the provision of section 141 of the Code of Civil Procedure is fully applicable. A point has, accordingly, been made, and I think with some force, when proceedings under section 173, subsection (3), are found to be independent proceedings in the nature of original proceedings and not proceedings in execution, there can be no reason why those under section 174, subsection (3) of the Bengal Tenancy Act should be treated differently, inasmuch as the principles as well as the grounds upon which the decision relating to the pro ceedings under section 173, subsection (3), is founded, hold good with respect to the latter as well. In this connection, I may refer to one of the aforementioned decisions of this Court, to wit, Mansur Ahmed v. Dakshlna Chandra Sen and others (P L D 1960 Dacca 130). As already stated, this was a case under section 173, subsection (3) of the Bengal Tenancy Act, but the question whether a proceeding under section 174, subsection (3) of the said Act is or is not a proceeding in execution was also canvassed and had actually been gone into at some length though that was eventually left open as being not necessary for the purpose of the decision of that parti cular case under different provision, to wit, section 173, sub section (3) of the Bengal Tenancy Act. After dealing with some of the conflicting decision on the point, it has been pointed out therein that, apart from the authorities supporting the view that proceedings under Order XXI, rule 90 of the Code of Civil Pro cedure are original proceedings and not proceedings in execution, there is also an important distinction between the said proceedings and those under section 174, subsection (3), and that distinction, too, appears to tilt scale in favour of the view that a proceeding under section 174, subsection (3) of the Bengal Tenancy Act is an independent proceeding even if a proceeding under Order XXI, rule 90, C. P. C. were held to be not so. It has thus been observed:‑

"How 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 appli cation 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 as sale under section 174 (3) of the Bengal Tenancy Act, different consideration may arise because such an application 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."

5. I am in respectful agreement with the above view and for the weighty reasons assigned in support thereof and also following the authorities laying down that a proceeding under Order XXI, rule 90 of the Code of Civil Procedure is an original proceeding and not a proceeding in execution, hold that a proceeding under section 174, subsection (3) of the Bengal Tenancy Act, is also an independent and original proceeding and not a proceeding in execution. In that view of the matter, therefore, the point at issue has been correctly decided by the learned Subordinate Judge and there is nothing to interfere in revision. In the result, the Rule Is discharged ; but, having regard to the facts and circumstances of the case, I make no order as to costs. S. B./K. B. A. Petition rejected.