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Jatindra Mohan Banik and anr. Vs. Surendra Mohan Roy Choudhury and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1938Cal549
AppellantJatindra Mohan Banik and anr.
RespondentSurendra Mohan Roy Choudhury and ors.
Cases Referred and Jatindra Mohan Mandal v. Elahi Bux
Excerpt:
- .....being a third party for a sum of rs. 3085. before that date, on 4th march 1937, an order for rateable distribution was passed in another money execution case no. 86 of 1936. the actual amount to be distributed among the three decree-holders was not settled until 19th january 1938. before that on 18th december 1937, notices under section 34, bengal agricultural debtors act were received. the learned judge below by his order dated 15th january 1938 refused to stay proceedings relying on the case in ramendra nath mandal v. dhananjoy mandal (1938) 25 air cal 261. the contention of the petitioners is that the debt of the judgment-debtors had not been wiped out as a result of the sale on 10th march 1937 because the question of rateable distribution was pending and that question was not.....
Judgment:
ORDER

1. This rule raises once more a question regarding the application of the Bengal Agricultural Debtors Act in the matter of stay of proceedings in an execution case in a Civil Court. The petitioners in this rule are the judgment-debtors. There were three decrees upon which three execution cases were started. In Money Execution Case No. 87 of 1936 for a decretal amount of Rs. 4100 the sale took place on 10th March 1937, the auction-purchaser being a third party for a sum of Rs. 3085. Before that date, on 4th March 1937, an order for rateable distribution was passed in another Money Execution Case No. 86 of 1936. The actual amount to be distributed among the three decree-holders was not settled until 19th January 1938. Before that on 18th December 1937, notices under Section 34, Bengal Agricultural Debtors Act were received. The learned Judge below by his order dated 15th January 1938 refused to stay proceedings relying on the case in Ramendra Nath Mandal v. Dhananjoy Mandal (1938) 25 AIR Cal 261. The contention of the petitioners is that the debt of the judgment-debtors had not been wiped out as a result of the sale on 10th March 1937 because the question of rateable distribution was pending and that question was not decided until after the notice under Section 34, Bengal Agricultural Debtors Act had been received. This matter has come before us many times and among the cases previously decided the following have been cited : Jagabandhu v. Bhiisai Bepari (1938) 25 AIR Cal 256, Ramendra Nath Mandal v. Dhananjoy Mandal (1938) 25 AIR Cal 261 and Jatindra Mohan Mandal v. Elahi Bux (1938) 42 CWN 530. They do not support the petitioner but a distinction is sought to be made in his behalf on the ground that in all these cases the auction-purchasers were the decree-holders. But that distinction does not seem to be relevant since the decree-holder auction-purchaser is also liable to an order for rateable distribution under Section 73, Civil P.C. The trend of decisions of this Court is to the effect that once a sale has taken place, the debt has ceased to exist to the extent of the purchase price and therefore there is no proceeding pending with regard to the amount of the debt in the Civil Court and so at that stage notice under Section 34, Bengal Agricultural Debtors Act can have no effect. As between the sale and the confirmation thereof various kinds of proceedings may take place, but those will not be treated as keeping the proceedings pending with regard to the debt which is mentioned in the notice. We are not prepared to extend the operation of the Act by reason of other matters coming in after the sale such as applications for rateable distribution, for setting aside a sale, and so on. This view is confirmed by the previous decisions of this Court. In that view, the order complained against should not be interfered with. The rule is discharged with costs, hearing-fee one gold mohur to be divided amongst the two sets of opposite parties.


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