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Nibaran Chandra Khandikar Vs. Sheikh Belatali - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1939Cal334
AppellantNibaran Chandra Khandikar
RespondentSheikh Belatali
Excerpt:
- .....order under section 34 of the act from the debt settlement board, and this stay order reached the learned munsif of satkhira immediately after the judgment-debtor'8 property had been sold in execution case no. 25 of 1938, namely on 11th june 1938. the learned munaif there, upon passed an order which purports to-have been made under section 151, civil p.c., to the effect that the sale which had just been held should be set aside and further proceedings in execution should be stayed under section 34, bengal agricultural debtors act. the decree-holder appealed against this order and his appeal was allowed by the learned additional judge of khulna on 22nd august 1938.2. the only grounds upon which the judgment-debtor obtained a rule in this court were to the effect that no appeal lay to the.....
Judgment:
ORDER

Edgley, J.

1. The petitioner in this case is a judgment-debtor, against whom the decree-holder, opposite party, had obtained a mortgage decree which he put into execution in Execution Case No. 25 of 1938. The petitioner during the course of the execution proceedings applied to the Debt Settlement Board at Satkhira for the settlement of his debts and the Debt Settlement Board issued a notice under Section 34, Bengal Agricultural Debtors Act. It appears however that the original notice issued by the Board was treated as invalid on account of some mistake therein. Steps were then taken on behalf of the judgment-debtor to obtain a fresh stay order under Section 34 of the Act from the Debt Settlement Board, and this stay order reached the learned Munsif of Satkhira immediately after the judgment-debtor'8 property had been sold in Execution Case No. 25 of 1938, namely on 11th June 1938. The learned Munaif there, upon passed an order which purports to-have been made under Section 151, Civil P.C., to the effect that the sale which had just been held should be set aside and further proceedings in execution should be stayed under Section 34, Bengal Agricultural Debtors Act. The decree-holder appealed against this order and his appeal was allowed by the learned Additional Judge of Khulna on 22nd August 1938.

2. The only grounds upon which the judgment-debtor obtained a rule in this Court were to the effect that no appeal lay to the learned Additional Judge, having regard to the fact that the order of the learned Munsif dated 11th June 1938 was passed under Section 151, Civil P.C. It is first argued by the learned advocate for the petitioner in this case that the learned Judge was wrong in holding that the order of the learned Munsif was an appealable order under Order 43, Rule 1, Civil P.C. The only sub-clause to Rule 1, Order 43, Civil P.C., which prima facie might have been applicable, would have been Sub-clause (j), which provides that

an appeal shall lie from an order under Rule 72 or Rule 92 of Order 21 setting aside or refusing to set aside a sale.

3. It is however clear from the nature of the order passed by the learned Munsif that Rule 72 of Order 21 of the Code had no possible application to the facts of this case; and further it is also clear that the order setting aside the sale could not have been passed under Order 21, Rule 92 of the Code. It is however argued by the learned advocate for the opposite party that the order of the learned Munsif, dated 11th June 1938, was really an order under Section 47, Civil P.C., and was therefore appealable. I am of opinion that there is considerable force in this argument. It is true that the order in question purports to have been made under Section 151 of the Code, but it would appear that in effect it is essentially an order which ought to have been made under Section 47 of the Code. It is urged by the learned advocate for the petitioner that the order in question was not made by the learned Munsif at the instance of either of the parties to the suit in which the decree was passed. Having regard however to the language of Section 47 of the Code, I am of opinion that this point is immaterial. Section 47 provides that

all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.

4. Admittedly all orders passed under Section 47 of the Code are appealable as decrees. Although neither party directly raised the question which was the subject matter of the order dated 11th June 1938, this question certainly arose between the parties in consequence of the successive events that took place in the Court of the learned Munsif. In the first place, on 11th June 1938, the judgment-debtor's property was sold in the execution sale held in connexion with Execution Case No. 25 of 1938. The decree-holder bid at the sale and purchased this property. A set-off was then allowed and in consequence the debt due from the judgment-debtor to the decree, holder ceased to exist. Immediately afterwards, a notice from the Debt Settlement Board was received by the learned Munsif. This event forthwith raised the question whether the execution sale ought to be set aside in order to comply with the terms of the notice. The question which thus arose was obviously one between the parties to the suit and it related to the execution of the decree. It therefore follows that the order which was passed by the learned Munsif, although it purports to be under Section 151 of the Code, was actually one under Section 47. It also follows that an appeal lay to the learned Additional Judge and that the lower Appellate Court acted properly in exercising its jurisdiction in allowing the appeal. This rule therefore fails and is accordingly discharged with costs. The hearing fee is assessed at one gold mohur.


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