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V. Appalnarsiah Vs. P. Venkata Rao - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1947Cal350
AppellantV. Appalnarsiah
RespondentP. Venkata Rao
Cases ReferredLakshmi Priya v. Saudamini Deb Das
Excerpt:
- .....17-11-1942, a notice under section 34, bengal agricultural debtors act, waa issued by the satkui debt settlement board but on the following day, namely on 18-11-1942, the board dismissed the judgment-debtor's application on the ground that he had filed a previous petition for the settlement of his debts before the dhitpur debt settlement board. on 19-11-1942 the execution sale took place. it appears that at about the same time an application for review was filed before the satkui debt settlement board. thereafter on 2611-1942 the execution proceedings were stayed by the executing court as a result of the stay order which had already been issued under section 34, bengal agricultural debtors act, by the satkui debt settlement board. on 17-11-1945, the judgment-debtor's application for.....
Judgment:
ORDER

1. The petitioner in this case is the decree-holder and the rule arises in connection with a petition filed by the judgment-debtor under the provisions of Order 21, Rule 89, Civil P.C. The petitioners instituted mortgage suit No. 39 of 1939 on 16-11-1939 and obtained decree on 22-2-1940. We are not concerned with the proceedings which were taken immediately after the decree for the purpose of executing it but we find that on 30-9-1942 the judgment-debtor instituted proceedings under Section 8, Bengal Agricultural Debtors Act, for the settlement of his mortgage debts. On 17-11-1942, a notice under Section 34, Bengal Agricultural Debtors Act, waa issued by the Satkui Debt Settlement Board but on the following day, namely on 18-11-1942, the Board dismissed the judgment-debtor's application on the ground that he had filed a previous petition for the settlement of his debts before the Dhitpur Debt Settlement Board. On 19-11-1942 the execution sale took place. It appears that at about the same time an application for review was filed before the Satkui Debt Settlement Board. Thereafter on 2611-1942 the execution proceedings were stayed by the executing Court as a result of the stay order which had already been issued under Section 34, Bengal Agricultural Debtors Act, by the Satkui Debt Settlement Board. On 17-11-1945, the judgment-debtor's application for review was dismissed by the Satkui Board and on 26-11-1945, the sale was confirmed. The petition under Order 21, Rule 89, Civil P.C., was filed by the judgment-debtor on 29-11-1945.

2. The main point urged by the learned Advocate for the petitioners in this rule is that the application under Order 21, Rule 89 of the Code is time barred having regard to the fact that under Article 166, Limitation Act, the application should have been made within 30 days of the date of the sale which, as stated above, took place on 19-11-1942. Mr. Mukherji on the other hand, contends that the proceedings before the executing Court had been lawfully stayed by virtue of a notice under Section 84, Bengal Agricultural Debtors Act, and that in any case his client was unable to take the steps contemplated by Order 21, Rule 89, Civil P.C., by reason of the fact that all proceedings in the executing Court had been stayed by order of that Court with effect from 26-11-1942.

3. In our opinion, there is no doubt that when the Satkui Debt Settlement Board dismissed the application which was pending before them, on 18-11-1942, the notice under Section 34 of the Act which had been issued by the Board in connection with the judgment-debtor's application ceased to be operative. It is true that shortly after the order of dismissal an application for review was filed before the Board but there is no provision in Section 34, Bengal Agricultural Debtors Act, which empowers a Debt Settlement Board to issue notice for stay of execution proceedings under that section in a case in which an application for review has been filed before the Board. It was pointed out by Biswas J. in Lakshmi Priya v. Saudamini Deb Das ('41) 45 C.W.N. 345 that

an application for review no more restores the original proceeding unless and until the previous decision is set aside or modified than the filing of an appeal or application for the revision and that is why it has been considered necessary to make special provision for stay in cases of appeal and revision by an amendment of the section.

This being the case, it follows that after the dismissal of the application by the Satkui Debt Settlement Board on 18-11-1942 the executing Court had no jurisdiction to give effect to any order for stay which purported to have been issued by the Satkui Board in connection with the judgment-debtor's application. It is clear that in the present ease the judgment-debtor is only entitled to an extension of the ordinary period of limitation if he can bring himself within the purview of Section 52, Bengal Agricultural Debtors Act. But from the language of this section he is clearly unable to do this. In our view, the judgment-debtor's application under Order 21, Rule 89 of the Code which was filed on 29-11-1945 was time-barred.

4. We must therefore set aside the judgment and order of the learned District Judge and make this rule absolute with costs. The order for the confirmation of the sale which was made on 26-11-1945 will stand. We assess the hearing fee at three gold mohurs.


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