P L D 1960 Dacca 452 (PLP)

7. As to the maintainability of the application for restitution, both under sections 144 and 151 of the Code of Civil Procedure, the learned Advocate for the appellant contends (a) that, even if the sale was set aside, the judgment‑debtor, who is entitled to get back the property, is not entitled to get restitution under section 144, because it speaks of suits and variation or reversal of the decree in a suit and section 144 does not con template any order like an order setting aside the sale on an application, either under section 174 (3) of the Bengal Tenancy Act or under Order XX1, rule 90 of the Code of Civil Procedure and, as such, section 144 does not apply to the case; (b) that even if the principle of section 144 is applicable for granting restitution of the property in respect of which the sale was set aside, it is not applicable against the petitioners who are not parties to the proceeding and (c) that, even if section 144 of the Code of Civil Procedure applies, the learned Additional District Judge is wrong in holding that the appeal against the decision of the trial Court is not entertainable.

8. His second contention is that the trial Court is absolutely wrong in holding that Opposite‑Parties Nos. 3 and 4 in the restitution case were transferees during the pendency of the sale‑set‑aside case against Opposite‑Party No. 2 Hiralal Goswami and the doctrine of Us pendens under section 52 of the Transfer of Property Act was illegally applied to the case, as that section also speaks of suit or proceeding in which any right to immovable property is directly and specifically in question, because it does not apply to the present case, as the sale‑set‑aside case, though a proceeding, does not involve any right to any immovable property, directly or specifically.

9. His third contention is that, at any rate, when there is remedy open to the petitioners for restitution by way of suit, the Court cannot invoke its inherent jurisdiction under section 151 of the Code of Civil Procedure to grant relief in this proceeding when it found that section 144 of the Code of Civil Procedure does not exactly apply.

10. Coming to the first branch of the first contention of the learned Advocate, though I agree with the learned Advocate that section 144 of the Code of Civil Procedure in terms does not apply, as the order setting aside the sale does not come within the terms of that section, yet I cannot agree with him because there are authorities where it has been held that section 144 is not exhaustive and the principle of section 144 can be extended to cases which do not strictly come within the wordings of section

144. In the case of Hamejaddi Howladar and another v. Maminaddi Shaikh and another (P L D 1959 Dacca 304), to the decision of which I am a party, it has been held that: "The power of a Court to direct restitution on a Court sale being set aside is inherent in the Court and is not confined to section 144 of the Code of Civil Procedure, and rests upon the principle that a Court of justice has a duty to repair the injury done to a party by its act."

11. Now coming to the third branch of the first contention of learned Advocate that the learned Additional District Judge is wrong in holding that no appeal lies against the decision of the trial Court in a proceeding under section 144 read with section 151 of the Code of Civil Procedure, I have already pointed out that the principle of section 144 can be extended to cases which do not come vi thin the exact wording of section 144 of the Code of Civil Procedure. Now the question is whether the principles underlying section 144 has been applied as one under section 144 or as one under section 151 of the Code of Civil Procedure. The Court may either purport to act under section 144 or under section 151 of the Code of Civil Procedure. If the Court purports to act under section 144, then certainly the order of the Court is appealable, however wrong that order maybe, because it is an order or at least purports to be an order under section 144 which is appealable, as it is a decree within the definition of decree in section 2 of the Code of Civil Procedure. If the Court purports to act in exercise of its inherent power under section 151, then certainly the order is not appealable, because the right of appeal is a creation of the statute and no appeal has been provided in the Code against an order under section 151 of the Code of Civil Procedure. In the present case, it is quite clear that the trial Court purported to act under section 151, as it appears from its judgment. So, no appeal lies and the learned Additional District Judge is perfectly right in holding that the appeal filed by the present appellant in the lower Appellate Court was incompetent. In support of this view, reference may be made to the decision of a Division Bench of this Court in the case of Fazil Mia and others v. Soleman and others ((1956) 8 D L R 593 ).

12. As to the second branch of the first contention of the learned Advocate for the appellant that even if the proceeding under section 144 is applicable in the sale‑set‑aside case, it is not applicable against Opposite‑Parties Nos. 3 and 4 as they were not parties to the sale‑set‑aside case, I am unable to accept this contention. It is no doubt true that Opposite‑Parties Nos. 3 and 4 in the restitution proceeding were not virtually parties to the sale‑set‑aside case, being Misc. Case No. 67 of 1953, still I think the applicant for restitution is entitled to get an order of restitution against them also for the following reasons.

13. It appears that the case was filed on 28‑4‑55, being Miscellaneous Case No. 67 of 1953, under section 174 (3) of the Bengal Tenancy Act against auction‑ purchaser‑ Opposite‑Party No.

1. He by his written objection asserted that he has transferred the property to Opposite‑Party No. 2 Hiralal Goswami by a kabala, dated 12‑1‑53, which is earlier than the date on which the Miscellaneous Case was started on 28‑4‑

53. Then the applicants in the sale‑set‑aside case impleaded Opposite Party No. 2, vide order, Exh. D, dated 3‑10‑

53. He in his turn asserted that he bad transferred the property to the present Opposite‑Parties Nos. 3 & 4 ; but, in spite of that, the applicant in the sale‑set‑aside case did not implead the present Opposite‑Parties Nos. 3 and

4. Therefore, Mr. Abdullah for the appellant contends that these Opposite‑Parties Nos. 3 and 4 were not parties to the proceeding and section 144 of the Code of Civil Procedure for restitution does not apply to their case and the Civil Procedure for restitution of possession of the property against them under section 144 is not maintainable.

14. Now the question is how far the applicant in the sale‑set aside case is bound to implead the subsequent transferees. It is not disputed that the decree‑holder and the auction‑purchaser and his transferee Opposite‑Party No. 2 in the present case were impleaded. Section 174 of the Bengal Tenancy Act, though provides for filing an application for setting aside the sale in certain circumstances, does not provide against whom such an application is to be filed. Under section 174 (3) of the Act, any person whose interest is affected by the sale may at any time within six months from the date of the sale apply to the Court for setting aside the sale on the ground stated in the section. Formerly there was conflict of opinion as to whether notice to the auction‑purchaser was necessary to maintain an application under section 174 of the Bengal Tenancy Act. Section 174‑A, which deals with applications under subsection (1) of section 174 and not with applications under subsection (3) of that section, provides in the proviso (2) to section 174‑A that no order shall be made unless notice of the application has been given to all the persons affected thereby. This proviso also does not speak of impleading the auction‑purchaser as a party to the sale- set‑aside proceeding under section 174 (3) of the Act. It speaks only of notice of the application for setting aside the sale on deposit of the entire sale money within 30 days from the date of the sale under subsection (1) of section 174 of the Act. The obligatory provision as to notice does not imply that the persons affected should formally be impleaded in the proceeding. The proviso does not say so in explicit terms and, as a matter of fact, the decree‑holder and the auction‑purchaser are already on record. But there are cases that in sale‑set‑aside cases the decree- holder and the auction‑purchaser should be impleaded as parties to the proceeding; and so far as the decree‑holder and the auction‑purchaser are concerned, it seems to be sufficient if the notice is given to them although they are not formally impleaded in the sale‑set‑aside case within time. Be that as it may, it has become the practice now‑a‑days to implead all the auction purchasers in a sale‑set‑aside case under section 174 (3) of the Bengal Tenancy Act. But there is no authority nor has any, provision been brought to my notice where it has been laid down that the subsequent transferees either by way of lease or by sale, are also to be made parties to the sale‑set‑aside proceed ing. On the contrary, it has been held by the Calcutta High Court in the case of Fatema Bibi and another v. Chhota Khuki and others (53 C W N 159) that: "A lessee of a raiyati holding from a landlord who has purchased the holding at an auction sale and taken delivery of possession thereof is not a necessary party to an application for setting aside the sale started before the lease and the order setting aside the sale, as against the lessor is binding on them." Though these Opposite‑Parties Nos. 3 and 4 were not parties to the ale‑set‑aside case, they were impleaded in the 144‑proceeding because they assert their possession in the disputed land by virtue of subsequent purchase. It is not disputed that both the sales -one in favour of opposite‑Party No. 3 and the other in favour of Opposite‑Party No. 4‑are sales after the sale‑set‑aside case was started on 28‑4‑

53. Certainly they are transferees after the sale‑set‑aside‑case was started on the 28‑4-53, because one sale in favour of Opposite‑Party No. 3 is dated 13‑5‑53 and the other in ' favour of Opposite‑Party No. 4 is dated 7‑10‑53.

15. It is contended by Mr. Abdullah that, in the sale‑set aside case started on 28‑4‑53, Opposite‑Party No. 2, the vendor of Opposite‑Parties Nos. 3 & 4, was not impleaded as a party till 3‑10‑

53. His contention is that the sale in favour of Opposite‑Party No. 2 on 12‑1‑53 was before the starting of the sale‑set aside case on 28‑4‑

53. It is undoubtedly true, but the sale by Opposite‑Party No. 2 in favour of Opposite‑Parties Nos. 3 and 4 was after the starting of the sale‑set‑aside case (Misc. Case No. 67 of 1953). What is contended by Mr. Abdullah is that their vendor, Opposite‑Party No. 2, was not impleaded till 3‑10‑53 and, therefore, the sale to Opposite‑Party No. 3 on 13‑5‑53 was before Opposite‑Party No. 2 was impleaded in the proceeding and, as such, in effect, it was a transfer before the sale‑set‑aside case was started against Opposite Party No. 2, a transferee from the auction‑purchaser before the sale‑set‑aside case against that auction‑purchaser. I may point out here that this Opposite‑Party No. 3 is not coming forward either by way of an appeal in the lower Appellate Court or by way of an appeal or revision in this Court. So far as Opposite Party No. 4, the present appellant, is concerned, certainly the transfer in his favour by Opposite‑Party No. 2 was not only during the pendency of the sale‑set‑aside case but it was after Opposite‑Party No. 2 was impleaded in the sale‑set‑aside case on 3‑10‑53, because the kabala in his favour is dated 7‑10‑

53. Therefore, this appellant is certainly affected by the order setting aside the sale as he derives his title from the transferee of the auction‑purchaser after the sale‑set‑aside case was started against him.

16. Now, coming to the second contention of lis pendens also, there is no doubt that this appellant is affected by the doctrine of lis pendens, because he purchased the property during the pendency of the sale‑set‑aside case. Mr. Abdullah's con tention is that section 52 of the Transfer of Property Act in terms does not apply.

17. Section 52 of the Transfer of Property Act provides that: "During the pendency in any Court of any suit or pro ceeding . . . . in which any right to immovable property is directly and specifically in question, the property cannot be transferred . . . . ." Then, in the explanation, it is stated:‑-- "For the purpose of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding m a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such a decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution." Mr. Abdullah is not contending that it is not a proceeding. What he contends is that in this proceeding no right to any immovable property is directly or specifically in question. I am unable to accept this contention of Mr. Abdullah. In the sale- set‑aside case, the applicant has certainly asserted his right in the property sold and challenged the sale on the ground of fraud or material irregularity in publishing and conduct ing the sale and thereby suffering substantial loss by the sale. Section 174 (3) of the Bengal Tenancy Act also provides that any person whose interest is affected by the sale can apply for setting aside the sale. The question is whether his right in the immovable property is affected by the sale or not. It is not contended that the applicants right in the immovable property was not affected by the sale and it was not directly or specifically in question. Therefore, the present appellant, who is Opposite' Party No. 4 in a 144‑proceeding, is a transferee of a property, or right which is directly and specifically in question, in the sale‑set‑aside proceeding and he is affected by the doctrine of lis pendens. He will rise and fall with the auction‑purchaser and his transferee Opposite‑Party No. 2.

18. The last contention of Mr. Abdullah is that when there are other remedies open, the Court should not have invoked inherent jurisdiction under section 151 of the Code of Civil Procedure. His contention is that the applicant for resti tution of the property under section 144 might have filed a separate suit for recovery of possession. I have already pointed out in the case of Hamejaddi Howladar and another v. Maminaddi Shaikh and another that the question of restitution comes under section 144 of the Code of Civil Procedure and the power to grant it is not confined to the section itself, and the Court, where it wants to repair the injury done to the party by his action, can grant, restitution on the principle that a Court of Justice has a duty to repair the injury done to the party by his acts and that duty the Court can exercise under section 144 or under section 151 of the Code of Civil Procedure. Therefore, the applicant, in view of this matter, cannot file a separate suit for getting restitution of the property from the persons who got the property by transfer from the auction‑purchaser during the pendency of the sale‑set‑aside case. Subsection (2) of section 144, C. P. C., also provides that no suit shall be instituted for restitution. In this view of the matter, this appeal has got no substance.

19. There is another matter. The lower Appellate Court definitely held that the appeal in the lower Appellate Court was not maintainable as the order passed by the trial Court is one under section 151 of the Code of Civil Procedure. I do not understand how an appeal against that order of the lower Appellate Court is entertainable. Apart from the merits of the case; the Appeal fails on this ground also. If the lower Appellate Court entertained an appeal and passed judgment in that appeal, then the present appellant might have maintained an appeal in this Court on that ground. But that is not the case here.

20. Then Mr. Abdullah fell back on the alternative applica tion under section 115 of the Code of Civil Procedure a copy of which have been served along with the notice of the appeal on the other side. In respect of this application, I may simply point out what I have already stated that the Court has got inherent power to grant restitution on the principle that a Court of justice has ‑a duty to repair the injury done to a party by his action. Mr. Abdullah has not been able to show me where the Court failed to exercise jurisdiction vested in him by law or acted illegally in the exercise of its jurisdiction. The alternative application under section 115 of the Code of Civil Procedure also is liable to be rejected.

21. In the result, the appeal is dismissed with costs and the application under section 115 of the Code of Civil Procedure is also rejected without any order as to costs. Leave prayed for under clause 15 of the Letters Patent is refused. K. B. A. Appeal dismissed.