P L D 1958 Dacca 320 (PLP)

(g) That the service return of delivery of possession was a mere paper transaction. (h) That the contesting opposite party taking advantage of his position as a bharatia tenant under the petitioner created a collusive document in his favour. On these findings, the learned Subordinate Judge set aside the sale to the extent of the petitioner's 2 annas share in the disputed holding. In giving the petitioner this partial relief, the learned Subordinate Judge observed as follows :‑ "In view of the recent decision of our Hon'ble High Court, I think it is a fit case that the sale in question should be set aside partially to the extent of interest of the petitioner‑appellant. That has also been conceded by the learned lawyers of both the parties before me." Against the judgment and order passed by the learned Subordinate Judge, the petitioner has moved this Court in its revisional jurisdiction. At the hearing of this application, Mr. Md. Shehabullah appeared for the petitioner and Mr. Ruhul Islam for opposite party No.

68. The learned Advocate for the petitioner has assailed the judgment and order passed by the learned Subordinate Judge on the following grounds (1) That the learned Subordinate Judge was wrong in thinking that the entire decree could not be set aside inasmuch as the interest of the applicant in the properties sold was to the extent of 2 annas. (2) That according to the provisions of section 174 (3) of the Bengal Tenancy Act a sale cannot be partially set aside. It must be set aside in toto. (3) That, even if it is held that under the aforesaid section a sale can be partially set aside, in view of the findings of the learned Subordinate Judge, the entire sale should have been set aside. With regard to the first ground urged by the learned Advocate for the petitioner, he has submitted that there is no decision of this Court which lays down that an applicant of a fractional interest in the property sold can only succeed in getting the sale set aside to the extent of his own share if he can establish fact by which he can pray in aid provisions of section 174 (3) of the Bengal Tenancy Act. The learned Advocate has pointed out that all that the decisions of this Court lay down is this that it f appropriate cases the sale may be set aside partially and that a Court in an application under section 174 (3) of the Bengal Tenancy Act is not bound to set aside the entire sale. I think that this contention of the learned Advocate for the petitioner must be upheld. The learned Advocate for the opposite party has also conceded that this is the position. This will also be clear from a discussion of the cases which are cited hereafter. I now proceed to discuss the next ground pressed and canvassed by the learned Advocate for the petitioner. The learned Advocate has urged that according, to the provisions of section 174 (3) of the Bengal Tenancy Act the entire sale has to be set aside even if the applicant's interest be a fractional share of the property sold. He further contends that the sale can be either set aside in toto or not at all. It cannot be partially set aside. The learned Advocate has taken pains to cite decisions on this point both in his favour and against him. He has cited the cases of Noabjan Bibi and others v. Chandra Kumar Roy Chowdhury and others (5 DLR 43), Srimati Nirode Bala Deb Roy v. Monmohan Datta and others (6 DLR 559) and Abedali Mondal v. Tohurannessa Bewa and others (7 DLR 185). The first of the above‑noted cases is a decision of Mr. Justice Guha and the rest are decisions of Mr. Justice Ibrahim. These decisions have laid down that in an appropriate case, on an application under section 174 (3) of the Bengal Tenancy Act, a sale can be partially set aside. There is however another decision of this Court which is the case of Jatindra Nath Mondal v. Beni Mondal and others (3 P L R (Dacca) 405). This is a decision of Mr. Justice Chowdhury. Chowdhury, J., was consider ing an application to set aside a sale under Order XXI, rule 90 of the Code of Civil Procedure. He held that a sale cannot be set aside partially. It has to be set aside in toto. Whether applications are made under Order XXI, rule 90 of the Code of Civil Procedure or under section 174 (3) of the Bengal Tenancy Act, the principles applicable to them are the same so far as this point is concerned. Is a sale capable of being partially set aside? The preponderance of the decisions in this Court is in favour of the view that a sale is capable of being set aside partially. Reliance has been placed on the following decisions of the Calcutta High Court which have consistently held that a sale can be set aside partially in appropriate cases. The following are the decisions of the Calcutta High Court which have taken the view mentioned above: Amulla Krishna Bandopadhya v. Dalip Kumar Roy and others (41 C W N 224), Rampada Nag Modak v. Kanai Rai and others (44 C L J 167) and Manmatha Nath Mukherjee v. Jiaul Huq and another (55 C W N 197). The case on which reliance has been placed by Mr. Justice Chowdhury in laying down the propositions that a sale has to be set aside in toto and that it cannot be partially set aside is the following case; Ramesh Chandra Patranabis, auction purchaser v. Biraja Sundari Gupta and others (32 C W N 519). This is a decision of Suhrawardy and Graham, JJ., of the Calcutta High Court. Graham, J., observed as follows at page 525 of the report "The sale cannot in my judgment be set aside in part so as to make it partly good and partly bad. It must stand or fall as a whole. It is either good or bad. It cannot in the nature of things be both good and bad." This is the ratio decidendi adopted by Chowdhury, J. The pro position boils down to this that a sale in its very nature is incapable of being split up. I fail to see how a sale in its very nature is incapable of being partially good and partially bad. In the case of Khiarajmal v. Daim (I L R 32, Cal. 296 (P. C.)), their Lordships of the Privy Council had to consider the question of the validity of a sale. Lord Davey in delivering the judgment of the Board observed at page 312 of the report as follows "The question, therefore, is whether the equity of redemption not only purported to be, but was In fact sold under the decrees. Their Lordships agree that the sales cannot be treated as void or now be avoided on‑ the grounds of any mere irregularities of procedure in obtaining the decrees or in the execution of them. But, on the other hand, the Court had no jurisdiction to sell the property of persons who were not parties to the proceedings or properly represented on the record. As against such persons, the decrees and sales purporting to be made would be a nullity and might be disregarded without any proceeding to set them aside." It is clear that this was a case where a sale was held to be good but it was also held that the same sale was bad in respect of the interests of a particular set of defendants. To me it appears that the nature of a sale in execution of a decree is essentially the same as a sale inter partes inasmuch as both affect transfers of property. Let us take the example of a sale by three persons. Two of the transferors had attained majority and one of them happened to be a minor. In a suit by the minor to set aside the sale so far as his interest is concerned, the sale will be set aside only to the extent of the interest of the minor. Therefore, a sale is capable of being partly good and partly bad. This in fact was the ratio decidendi in the case of Rampada Nag Modak v. Kanai Rai and others, a decision to which Suhrawardy, J., was a party. At page 169 of the report, there is a short observation as follows :‑ "On the main question it is said that the sale cannot be partially set aside. There is sample authority that this can be done". The cases cited in the above case were Khiarajmal v. Daim and Rajagopala Ayyar, minor (by guardian Ramchandra Ayyar) v. Ramanujachariar and another. From the decisions quoted above, it is evident that the preponderance of decisions of both the Calcutta High Court and of this Court favour the view that a sale can be partially set aside. I am also of the same view. In the light of the order that I am going to pass, this view of mine will be an obiter. I now propose to deal with the 3rd and last ground pressed by the learned Advocate for the petitioner, namely, that in view of the findings arrived at by the learned Subordinate Judge, he should have set aside the sale in toto. I have already quoted above some of the findings of the learned Subordinate Judge and I think that in the light of those findings the contention of the learned Advocate for the petitioner on this point must be upheld. On the facts of this case, the entire sale should be set aside. The result, therefore, is that this rule is made absolute and the judgment and order passed by the learned Subordinate Judge is set aside. I make no order as to costs. Z. S. A. Rule made absolute.