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Tahiman Bibi and ors. Vs. Midnapore Zamindari Co. Ltd. and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
AppellantTahiman Bibi and ors.
RespondentMidnapore Zamindari Co. Ltd. and anr.
Cases Referred and Kalipada Mondal v. Bimal Chandra Sinha Civil Revn. No.
Excerpt:
- .....37a is received, any member of the board may examine the applicant and may call for additional information in order to complete such application.it is common ground that the date of sale was not given in the application dated 26-5-1943; nor was the date of delivery of possession given; the number of the execution case was wrongly given; the khatian number of the property and its rental were wrongly given; and the area of the land mentioned was stated as 3.26 acres instead of 4.29 acres. mr. janah for the petitioners states that the chief mistake of the applicants was that they had the wrong number of the rent execution case. for the purpose of this application, they had to apply for extracts of the court records for the other information, and on giving a wrong number of the rent.....
Judgment:
ORDER

Blank, J.

1. The facts from which this rule arises are the following. There was a sale of a certain property in May 1937. The present petitioners, the debtors, made an application under Section 37A, Bengal Agricultural Debtors Act, on 26-5-1943. There were certain mistakes in this application; The mistakes were corrected by another application, dated 13-8-1946. The Board allowed the mistakes to be corrected and ordered delivery of possession. The appellate officer dismissed the appeal, but on revision by the District Judge, the orders of the appellate officer and of the Debt Settlement Board were reversed.

2. It is common ground that Section 37A, Bengal Agricultural Debtors Act, is applicable. The learned District Judge held, first, that there was no debt at the time of the order, the debt having been extinguished by the profits derived from the possession of the decree-holder from 1937 to 1943; and secondly that the application for amendment was more than one year after the time limited in Section 37A of the Act; the amendment being in substance a new application.

3. The former point can be disposed of shortly. The learned advocate for the opposite party has candidly drawn my attention' to two decisions of Divison Benches of this Court, viz., civil Revn. Case No. Sukhendu Bikash v. Srish Chandra Civil Revn. No. 1854 of 1947, D/-24-2-1948 (Cal.), and Kalipada Mondal v. Bimal Chandra Sinha Civil Revn. No. 1293 of 1947, D/-9-3-1948 (Cal.), These decisions dispose of the point in the sense contrary to that held by the learned District Judge.

4. With regard to the second ground of the learned District Judge's finding, it should be stated that the material date in the present instance is one year after the coming into force of the Bengal Agricultural Debtors (Amendment) Act of 1942. The learned advocate for the petitioners has drawn my attention to the Gazette Notification No. 1300 Rule 1., dated 11-6-1942, which establishes that the said Act came into force on 18-6-1942. Thus, the application under Section 37A was itself in time.

5. The substantial question now is whether the corrections to the application constituted a new application, or merely completed the original application. If the latter, they are within the ambit of the statutory Rule 77-BB (2) which runs as follows:

After an application under Sub-section (2) of Section 37A is received, any member of the Board may examine the applicant and may call for additional information in order to complete such application.

It is common ground that the date of sale was not given in the application dated 26-5-1943; nor was the date of delivery of possession given; the number of the execution case was wrongly given; the khatian number of the property and its rental were wrongly given; and the area of the land mentioned was stated as 3.26 acres instead of 4.29 acres. Mr. Janah for the petitioners states that the chief mistake of the applicants was that they had the wrong number of the rent execution case. For the purpose of this application, they had to apply for extracts of the Court records for the other information, and on giving a wrong number of the rent execution case, they were necessarily furnished with wrong information on all the other points.

6. The application having been filed on 26-5-1943, the order of the Board, dated 24-11-1943, shows that the opposite party Midnapore Zemindary Co., Limited, appeared on that day and raised objection, and that a date was fixed for hearing. On 18-7-1946, the order of the Board is:

Both parties present. The applicant could not say when the sale actually took place. He must prove it next day.

On the next date fixed, both parties were present, and the applicant filed a petition stating that the number of the execution case was wrongly entered on the application form and drawing attention to other mistakes in the data placed before the Board.

7. The question is whether this was a completion of the original application, as the petitioners contend, or whether it was in substance a new application, as the opposite party contends. The learned advocate for the opposite party contended that there were so many incorrect statements in the original application that it was in substance no application at all. At first, sight, it would certainly appear that the mistakes in the application are of such a nature and so many, as to leave, very little, remaining substance. Mr. Janah for, the petitioners has drawn my attention to the statutory form of the application, viz., Form XIX-A.: After the introductory recitals, this form consists of places for the names and description etc., of, the applicants. This part of the form is said to have been filled incorrectly, and I have no doubt, that mistakes of substance in this part of the form were impossible. Schedule a of the form contains details of the immovable properties sold and of the civil Court proceedings in execution of which it was sold. Schedule B of the form contains particulars of income of the applicants and so on. Schedule B is also said to have been correctly filled in, and this like Schedule A, depended on information in the possession of the applicants. With regard to Schedule A, it is said that columns 1, 8, 9, 10 and 11 were correctly filled in. These columns respectively give the name of the Court at whose order the sale was effected, the name and address of the decree-holder, the name and address of the occupiers of the land at the time of sale, the name and address of the present occupier of the land and since when and on what right, and the name and adderss of the landlord of the applicant. Columns 4, 7 and 8 were left blank. These are columns respectively for the total amount of the decree, the date of sale, and the date of. delivery of possession to the decree-holder. The entries in columns 2, 5 and 6 are said to have been wrong. These are the entries respectively for the execution case number, particulars of the property sold and the annual rent of the property sold. Columns 12 and 13 were not necessary for the purpose of the particular application and were crossed out.

8. On a consideration of the substance of the entries in the respective columns, I find that the mistakes and omissions were of great seriousness, but it cannot be said, in my opinion, that what remained was, so to speak, the mere husk of an application. The name of the Court ordering the sale was given; the name and the address of the decree-holder the name and address of the occupiers of the land at the time of sale and the name and address of the landlord were correctly given. It is also common ground that this was the only property under the Midnapore Zemindary Co., held by the applicants within the jurisdiction of the Board. I hold, therefore, that there was some subtance remaining in the application, and that the additional information supplied at the call of the Board was within the wide terms of Rule 77BB(2). It is not contended that there is any limitation or restriction of time within which the Board is competent to call for additional information.

9. Holding as I do that this is not a case of amendment, but of additional information to complete the application and that the facts of the present case bring the matter within the powers of the Board: it follows that the decision of the learned District Judge cannot be supported.

10. The result is that this rule is made absolute. The order of the District Judge is set aside. The orders of the Appellate Officer and of the Debt Settlement Board are restored with necessary modification as to the date of recovery of possession which will now be, by agreement of the learned advocates on both sides, the 1st Kartick, 1355 B.S. In the circumstances, I make no order as to costs.


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