1. This is a rule calling upon the opposite party to show cause why the subordinate Judge should not be directed to proceed with a certain execution case filed by the petitioner against the opposite party. The case has a fairly long history behind it and there can be no doubt that the opposite party will go to any length in order to evade payment of his debts. He is a gentleman called Bhupendra Chandra Dutt and he is pretending to be an agriculturist. He applied before a Debt Settlement Board in the District of Twenty-four Parganas. He pretended that he was living in a farm house somewhere in the remoter parts of the district. The Board found that he had concocted a document to create evidence of his residence and they also found that he was not an agriculturist. They accordingly dismissed his application. He has now gone off to a Board somewhere in the district of Hooghly and persuaded them to issue a notice on the subordinate Judge under Section 34, Bengal Agricultural Debtors Act.
2. As there was really nothing to be said in favour of the opposite party a preliminary objection was pressed in opposition to the rule. That raised a highly technical point whether the petitioner ought to have moved this Court or to have filed an appeal in the District Court. In support of this preliminary objection reliance was placed upon the decision of my learned brothers Nasim Ali and Rau JJ. in Nafar Chandra v. Kalipada Das : AIR1940Cal257 . That case was converse to the present case and dealt with an order refusing to stay proceedings. I doubt whether an order staying proceedings would amout to a decree. I should find it difficult to say that an order adjourning a case does conclusively determine anything. I might have felt disposed to refer this matter involving as it does a question of jurisdiction to a Division Bench. But an equally technical reply has been made to the technical objection. The petition has been directed against two orders - order No. 41 and order No. 47. Whatever might be argued with regard to order No. 47 it could not possibly be said that order No. 41 decided anything.
3. On the merits the question in point has recently been decided by Edgley J. in Kali Sudar Roy v. Khum Chand ('40) 27 AIR 1940 Cal 473. I entirely agree with that decision and the reasoning upon which it is based. In the present case the opposite party's application was dismissed by the first Board under Section 17 (1) of the Act. In connexion with the preliminary objection it may be noted that in this case it was assumed that the remedy was by appeal and not by revision. Inasmuch as the judgment-debtor failed in all Courts it is a matter of no importance. The present rule is accordingly made absolute. The lower Court is directed to proceed with the execution proceedings in accordance with law. The opposite party will pay costs to the petitioner, hearing fee being assessed at three gold mohurs.