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Radha Benodini Debi Vs. Gagan Chandra Bhattacharjee and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1945Cal398
AppellantRadha Benodini Debi
RespondentGagan Chandra Bhattacharjee and ors.
Excerpt:
- .....in order to see whether it would be possible to have the matter finally settled, i directed that notice of this appeal should be given to the auction purchaser. the short question for consideration actually in the present appeal is whether the application under order 21, rule 90 is liable to be stayed as result of the service of the notice under section 34. certainly the execution case brought by the appellant would be liable to be stayed at the stage which it had reached when the notice was served. that is quite a different thing. the learned judge relied upon the words in the explanation 'for the purpose of this section execution proceedings for the sale of any property should be deemed to be pending, etc'. i do not understand how an application under order 21, rule 90 could be.....
Judgment:

Henderson, J.

1. This appeal is directed against an order staying an application filed by respondents 2 and 3 under Order 21, Rule 90, Civil P.C., in consequence of a notice served by a Debt Settlement Board under Section 34, Bengal Agricultural Debtors Act. Briefly, respondents 2 and 3 purchased one third share in the equity of redemption. They filed their application under Order 21, Rule 90 as long ago as 20th November 1941. Although they are Brahmins living in the town of Mymensingh, they then went to a Debt Settlement Board and I am told their case is still pending before it. Possible complications have been introduced in the case, because the appellant went on with the execution case against judgment-debtor 1, though the decree was a mortgage decree. In order to see whether it would be possible to have the matter finally settled, I directed that notice of this appeal should be given to the auction purchaser. The short question for consideration actually in the present appeal is whether the application under Order 21, Rule 90 is liable to be stayed as result of the service of the notice under Section 34. Certainly the execution case brought by the appellant would be liable to be stayed at the stage which it had reached when the notice was served. That is quite a different thing. The learned Judge relied upon the words in the explanation 'for the purpose of this section execution proceedings for the sale of any property should be deemed to be pending, etc'. I do not understand how an application under Order 21, Rule 90 could be called an execution proceeding for the sale of a property. It is exactly the opposite. Then, in the second place, the auction purchaser is a necessary party to it and directly interested in it. He has nothing to do with the debt or proceedings before the Board and he cannot even intervene under the provisions of Section 47.

2. The appeal is accordingly allowed, the orders of both the Courts below are set aside and I direct the Munsif to hear and determine the application under Order 21, Rule 90, Civil P.C., in accordance with law. Respondents 2 and 3 will pay the costs of the appellant in this Court and in the lower appellate Court, hearing fee two gold mohurs. The costs in the first Court will abide the result. No order is necessary in the rule.


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