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Bejoy Govinda Basu Vs. Noakhali Loan Office Ltd. and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1943Cal119
AppellantBejoy Govinda Basu
RespondentNoakhali Loan Office Ltd. and ors.
Cases Referred and Girija Kanta Roy v. Tuni Bibi
Excerpt:
- .....settlement board for a settlement of this debt and a notice of this application under section 34, bengal agricultural debtor's act, was received by the munsiff's court on 18th december 1937. notwithstanding this notice the court proceeded to hear the application for setting aside the sale pursuant to the order of remand and ultimately dismissed it on 30th april 1938; the execution case was thereafter revived and the sale was confirmed on 12th may 1938.2. it was urged before us on behalf of the appellant that after receiving the notice aforesaid on 18th december 1937, the trial court had no jurisdiction to proceed with the application for setting aside the sale and to revive the execution case and confirm the sale; that as the sale was set aside on 20th march 1937, the 'debt' revived, so.....
Judgment:

Mohamad Akram, J.

1. This appeal by the plaintiff arises out of a suit for a declaration that all proceedings in Execution Case No. 57 of 1936 of the Second Munsiff's Court, Noakhali, after the receipt of a notice under Section 34, Bengal Agricultural Debtor's Act, from Durgapur Rasulpur Debt Settlement Board on 18th December 1937, were void, illegal and ultra vires. The trial Court decreed the suit in part but the lower appellate Court dismissed it; the plaintiff thereupon preferred the present appeal. It appears that defendant 1 in execution of a mortgage decree against the plaintiff and the pro forma defendants (Execution Case No. 57 of 1936) had the mortgaged properties sold on 24th September 1936; some of the properties were purchased by the decree-holder and some by others, defendants 2, 3 and 4; on 17th November 1936, the plaintiff and the pro forma defendants filed an application under Order 21, Rule 90, Civil P.C., for setting aside the sale; the sale was set aside ex parte on 20th March 1937 and an appeal therefrom was dismissed on 3rd July 1937, an application was there-upon made before the High Court by the e auction purchasers and a rule was issued on 8th November 1937 and finally the case was remanded to the trial Court on 15th February 1938 for a hearing on the merits. On 9th December 1937 however the (plaintiff) judgment-debtor made an application to the Durgapur Rasulpur Debt Settlement Board for a settlement of this debt and a notice of this application under Section 34, Bengal Agricultural Debtor's Act, was received by the Munsiff's Court on 18th December 1937. Notwithstanding this notice the Court proceeded to hear the application for setting aside the sale pursuant to the order of remand and ultimately dismissed it on 30th April 1938; the execution case was thereafter revived and the sale was confirmed on 12th May 1938.

2. It was urged before us on behalf of the appellant that after receiving the notice aforesaid on 18th December 1937, the trial Court had no jurisdiction to proceed with the application for setting aside the sale and to revive the execution case and confirm the sale; that as the sale was set aside on 20th March 1937, the 'debt' revived, so that the operation of Sections 33 and 34, Bengal Agricultural Debtor's Act, was attracted to the proceeding; that a mere deposit of the purchase money by the third party auction purchasers was not sufficient to wipe off the debt and reliance was placed upon the decision in Broja Bashi Ray v. Nagar Basi Choudhury ('38) 25 A.I.R. Cal. 362, in support. We do not think however that the above-mentioned decision cited by the appellant is applicable to the present case. The decision of the present case seems to us to depend upon the effect of the order dated 15th February 1938 passed by the High Court setting aside the order of the Courts below setting aside the sale; in our opinion that order had the effect of wiping off the debt retrospectively; as the debt was satisfied by the sale, Section 34, Bengal Agricultural Debtor's Act, had no application and consequently the trial Court was not obliged to stay these proceedings, vide the cases in Nrishingha Charan v. Kedar Nath ('37) 24 A.I.R. 1937 Cal. 713 and Girija Kanta Roy v. Tuni Bibi ('39) 43 C.W.N. 978. As to the deposit by the third party auction purchasers, the finding of the lower appellate Court is that the balance of the purchase money was deposited on 7th October 1936, i.e., 'long before 18th December 1937' and 'by this deposit the entire decretal dues (Rs. 2300 odd) were satisfied.' In the above circumstances we are of opinion that there was no debt or unsatisfied decree before the learned Munsif which required the proceedings before him to be stayed under the provisions of the Bengal Agricultural Debtor's Act. We accordingly agree in the view taken by the learned District Judge in the Court of appeal below and dismiss this appeal with costs. The hearing fee is to be divided equally between the two sets of appearing respondents.

Edgley, J.

3. I agree.


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