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Lankeswar Haldar and anr. Vs. Ram Gopal Das Naskar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 1702 of 1950
Judge
Reported inAIR1953Cal323
ActsDebt Law; ;Bengal Agricultural Debtors' Act, 1936 - Section 37A
AppellantLankeswar Haldar and anr.
RespondentRam Gopal Das Naskar and ors.
Appellant AdvocateS.C. Janah, Adv.
Respondent AdvocateA.C. Gupta, ;Amritalal Mukherjee and ;Nirmal Chandra Mukherjee, Advs.
Excerpt:
- .....act. the proceedings originallystarted by a petition dated 4-9-1942 under section 37a filed by biju haldar, opposite party 4. the section itself had just come into force on 18-6-1942, the application was not made in form xixa as required by rule 77a framed under the act. although, possibly, in substance, it contains all the necessary materials if read with the previous application under section 8 of the act which had been made by biju haldar, and which is referred to in his later application under section 37a. nothing much appears to have been done on this application but on 10-1-1944, biju haldar filed another application in proper form. the present petitioners, lankeswar haldar, and sm. promila sundari dasi are cosharers of biju haldar in the properties, the sale of which was.....
Judgment:
ORDER

Roxburgh, J.

1. This rule raises an interesting point under Section 37A, Bengal Agricultural Debtors' Act. The proceedings originallystarted by a petition dated 4-9-1942 under Section 37A filed by Biju Haldar, opposite party 4. The Section itself had just come into force on 18-6-1942, The application was not made in Form XIXA as required by Rule 77A framed under the Act. Although, possibly, in substance, it contains all the necessary materials if read with the previous application under Section 8 of the Act which had been made by Biju Haldar, and which is referred to in his later application under Section 37A. Nothing much appears to have been done on this application but on 10-1-1944, Biju Haldar filed another application in proper form. The present petitioners, Lankeswar Haldar, and Sm. Promila Sundari Dasi are cosharers of Biju Haldar in the properties, the sale of which was sought to be set aside by these proceedings. Eventually, on 24-5-1945, they themselves filed an application under Section 37A mentioning that Biju Haldar was considering withdrawing his application. Eventually, on 10th August, Biju Haldar withdrew- his application.

2. It is not necessary to trace the subsequent history of the case which has once before been before this Court. The present stage is that the only question for consideration is whether the application of the present petitioners under Section 37A is barred by limitation. Ever since the point was taken, at has been decided against them. The decision of the learned First Extra Additional District Judge of 24-Parganas which is the subject-matter of the present rule is based on the view that the original application of Biju Haldar on 4-9-1942, was no application under the Act, and therefore, no application of any sort had been made by any party under Section 37A before 10-1-1944, which was therefore out of time, the period of limitation being uptill one year from 18-6-1942, the date of commencement of the Bengal Agricultural Debtors' Act, 1942.

3. Mr. Janah appearing on behalf of the petitioners has contested this view. Mr. Atul Chandra Gupta appearing on behalf of the opposite party does not attempt to challenge the argument put forward by Mr. Janah but contends simply that the only question for consideration is as to when was the application made by the present petitioners. His contention is that even assuming that the application of Biju Haldar was good that application could only be for the benefit of Biju Haldar, and that if any cosharer wishes to make an application to obtain the benefit of the provisions of Section 37A, he was required himself to make an independent application under the Section within the period of limitation. Even assuming that the petitioners were in some way parties to the proceedings on the application of Biju Haldar that gave them no right to the benefit of the application of Biju Haldar, and if they wished to obtain in their own favour the benefit of the provisions of this Section, it was necessary for them to make an application before 18-6-1943. In my opinion, there appears to be no answer to this contention. It has been held that a cosharer can make the application on his own behalf and recover the whole property sold if he undertakes the obligation of paying the amount of the debt. It seems to me to follow as a corollary that the contention of the learned Advocate for the respondents is sound. I do not think there is any analogy here between the case of a 'pro forma' defendant being transferred to the category of a plaintiff in an ordinary civil suit. There is a closer analogy perhaps to the provisions of Section 26F, Bengal Tenancy Act where a special right of pre-emption is given to cosharers under Section 26F (4) (a), but they have to apply to join in the said application and a special period of limitation is laid down for such applications. Thus, I consider that the order of the learned Judge in the matter is correct although I am, to say the least, doubtful that the reason on which he has based his order is sound.

4. This rule is accordingly discharged with costs.


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