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Prafulla Kumar Roy and ors. Vs. Sm. Bibhabati Roy Widow of Jatindra Nath Roy and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1942Cal369
AppellantPrafulla Kumar Roy and ors.
RespondentSm. Bibhabati Roy Widow of Jatindra Nath Roy and ors.
Excerpt:
- .....appellants are liable to pay only their share of the judgment-debt in view of the fact that the decree-holder who was liable for 1/12th share of the judgment-debt has deducted the amount for which she is liable under the decree out of the total decretal amount; (iii) that the provisions of section 168a which were introduced in the bengal tenancy act by bengal act 18 of 1940 prohibits the sale of the properties of the appellants which have been sold by the decree-holder in execution of the decree.2. as regards the first two objections, it appears that the present decree-holder in the previous execution cases realised portions of the decretal amount from the present appellants by execution.' the present appellants, however, in those execution cases did not raise these objections. if.....
Judgment:

1. This is an appeal by the judgment-debtors Nos. 3 to 6 in an execution proceeding. The objections of the appellants to the execution of the decree are these : (i) that the present execution petition is not at all maintainable in view of the fact that the deoree-holder is also one of the judgment-debtors; (ii) that in any view of the case the appellants are liable to pay only their share of the judgment-debt in view of the fact that the decree-holder who was liable for 1/12th share of the judgment-debt has deducted the amount for which she is liable under the decree out of the total decretal amount; (iii) that the provisions of Section 168A which were introduced in the Bengal Tenancy Act by Bengal Act 18 of 1940 prohibits the sale of the properties of the appellants which have been sold by the decree-holder in execution of the decree.

2. As regards the first two objections, it appears that the present decree-holder in the previous execution cases realised portions of the decretal amount from the present appellants by execution.' The present appellants, however, in those execution cases did not raise these objections. If these objections had been raised in the previous execution cases, the previous execution' cases would have been dismissed and the decree-holder could not have realised the amount which she realised from the present appellants. It is therefore not now open to the appellants to take the first two objections. As regards the third objection, it is an admitted fact in this case that before the Act 18 of 1940 came into operation, the properties of the judgment debtors were sold and the sale was confirmed. It further appears that the decree-holder auction purchaser took possession of these properties before the amending Act came into force. Mr. Sen's contention is that the sale was confirmed and possession was taken during the pendency of the proceeding under Section 47, Civil P.C. and consequently it must be taken that the execution proceeding had not terminated before the Act came into operation. We are unable to accept this contention. The execution proceeding terminated before the Act came into operation. No doubt, certain objections were taken to the sale before the sale was confirmed; but the present objection under Section 168A was not open to the judgment-debtors at the time as that section came into force after the sale was confirmed. If this objection would have been available to the judgment-debtors at the time when the objection under Section 47, Civil P.C., was taken by the judgment-debtors before the sale, the position might have been different. The position therefore is that before the Act came into operation, the sale was confirmed and possession was taken by the auction purchasers and the execution proceeding terminated. After Section 168A was introduced by the amending Act, the position was that the properties of the judgment-debtors other than the defaulting tenure could not be attached or sold in execution of the decree for arrears of rent whether having the effect of a rent decree or not. This section was never intended to affect the sales which were confirmed before the Act came into operation. The three points urged in support of the appeal therefore fail. The appeal is accordingly dismissed with costs. Hearing-fee is assessed at two gold mohurs.


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