K.C. Das Gupta, J.
1. The two appellants Tabiruddin Mallick and Bansi Malliek and their brother Pyzulla held the lands which are the subject matter of the present litigation in occupancy raiyati right; the holding was, however, put up to sale in execution of a rent decree and purchased by the proforma defendants Protiva Sundari Dasi, Umasashi Dassi and Puspalata Dassi. On an application under Section 37A-, Bengal Agricultural Debtors Act by Tabiruddin Bansi and Foyzulla, an award was made directing restoration of the lands to them. They applied to the Civil Court under Sub-section (8) of Section 37A in order to be put in possession on the strength of the award. As the landlord had in the meantime obtained a decree for rent against the heirs of a new tenant Phani Bhusan Bhattacharjee and Protivarani Debi had purchased the holding and had obtained possession through court, the former tenants Tabiruddin Mallick, Bansi Malllcte and Foyzulla impleaded Protivarani Debi as well as the heirs of Phani Bhusan Protivarani appeared and prayed that their names should be expunged from the proceedings as they were not partie to the proceeding which resulted in the award. The learned Munsif rejected this prayer, held that none of the opposite parties were under raiyats of the debt or and therefore all of them including Protivarani were liable to ejectment.
2. Thereupon Protivarani has instituted the present suit with a view to get rid of the award and the order of ejectment. Her case in substance is that as before the 20th day of December, 1939 which will be hereafter referred to as the 'relevant date', the landlords had alienated the lands by a bona fide lease for valuable consideration, as mentioned in Section 37A (1) (c) (iii) to Phani Bhusan Bhattacharjee, the award was without jurisdiction and so the order of the Civil Court directing possession to be delivered was itself void and is not binding against her. The defence was that as the order of the Civil Court under Sub-s. (8) was an appellate order, the only way in which the correctness of the order could be challenged was by way of appeal and as no appeal was filed, the order is binding on all the parties in the proceedings under Sub-section (8) of Section 37A, Bengal Agricultural .Debtors Act, including the present plaintiff. An objection was also taken that the suit was barred under Section 47, Civil P. C. There was also a denial of the averment that there was a bona fide lease in favour of Phani Bhusan Bhattacharjee before the relevant date.
3. The trial court held that there was a bona fide lease in favour of Phani Bhusan before the relevant date, and so the award was made without jurisdiction and he held also that Section 47 was not a bar to the present suit, nor was the suit barred by the principle of res judicata and passed a decree in favour of the plaintiff in the following terms:
'That the suit be decreed with, costs on contest against the principal defendants in presenceof the proforma defendants. Plaintiff's alleged title to the suit land be declared, and her possession therein be confirmed. Let a permanent injunction be issued against the principal defendants restraining them from taking possession of the suit land. It is hereby declared that the order passed by the Munsif local 2nd court on 16-5-47 in Rent Execution Case No. 846 of 1937 is illegal, ultra vires and without jurisdiction.
It be further declared that the principal defendants are not entitled to get possession of the suit land in terms of the order passed by the Munsif on 16-5-47. It is further declared that the order passed by the Nadia Special D.S. Board in Case No. 125/4 of 1943 is not binding against the plaintiff. It is also declared that the award passed in that case is illegal, ultra vires without jurisdiction, and it is not binding against the plaintiff.'
4. The appellate court agreed with these findings and dismissed the appeal.
5. A point appears to have been taken at the hearing of the appeal that defendant No. 3 Phani Bhusan Bhattacharjee had died long before the hearing of the suit in the trial court and consequently the entire suit should fail. The learned District Judge was of opinion that as this was a new point not taken before the Subordinate Judge, it would not be proper to decide the point either way and if the heirs of Phani Bhusan were in any way affected by the decree, the question may be taken up subsequently in appropriate proceedings.
6. The main contention in appeal is that the order passed by the Civil Court in the application under Sub-section (8) of Section 37A, Bengal Agricultural Debtors Act was an appealable order and that the point now raised viz. that the award was without jurisdiction on the ground that there being a bona fide lease in favour of Phani Bhusan before the relevant date should have been taken before the Civil Court and as it was not taken, the present suit is barred.
7. It has been held by the court that the order passed by the Civil Court under Sub-section (8) or Section 37A is in substance an order of restitution and in that view, an appeal would lie against that order. The question, however, remains whether it was open to the court hearing the application under Sub-section (8) of Section 37A, Bengal Agricultural Debtors Act to go into the question of the award being without jurisdiction because of the lease in favour of Phani Bhusan. If it was, there would be scope for argument that the suit is barred. If it was not, it would be clearly open to an aggrieved party to challenge the award itself and any order made on the basis thereof is by a separate suit.
8. 'Prima faice', the civil Court in deciding an application under Sub-section (8) of Section 37A has to look to the provision of that section. Sub-section (8) is in these words:
'The debtor may present a copy of the award made under Sub-section (5) to the Civil Court or Certificate officer at whose order the property was sold, and such court or certificate officer shall thereupon direct that the sale be set aside, that the debtor together with any person who was in possession of the property sold or any part thereof at the time of delivery of possession of such property to the decree holder as an under raiyat of the debtor and who has been ejected therefrom by reason of such sale be restored to possession of the property with effect from the first day of Baisakh next following or the first of Kartic nextfollowing, whichever is earlier, and that any person who is in possession of the property other than a person who was in posssession of the property or part thereof as an under raiyat of the debtor at the time of delivery of possession of such property to the decree holder shall be ejected therefrom with effect from that date.'
These provisions do not raise any questidn of there being any lease in favour of any person prior to the relevant date. It was held in --'Gorachand Haldar v. Prafulla Kumar' : AIR1925Cal907 , an executing court can go into the question whether the decree is void as being without jurisdiction, only if the lack of jurisdiction is apparent on the face of the record. (The application under Sub-section (8) of Section 37A is in the nature of execution proceedings and so if on the face of the record, the award was without jurisdiction, it might be said that the Civil Court dealing with an application under Sub-section (8) should refuse to pass an order thereunder.)
The truth or otherwise of the ground on which the award is said to be without jurisdiction viz. that there was a bona fide lease in favour of Phani Bhusan is by no means apparent on the face of the record. It can be decided only after a thorough investigation on evidence. That investigation cannot in law be undertaken by the executing court. I am therefore of opinion that it was not open to the Civil Court in dealing with the application under Sub-section (8) of Section 37A, Bengal Agricultural Debtors Act to go into the question whether or not the award was without jurisdiction because of the existence of a bona fide lease in favour of Phani Bhusan Bhattacharjee before the relevant date. My conclusion therefore is that a separate suit is maintainable for decision of that question.
9. It was next contended that the finding that there was a bona fide lease in favour of Phani Bhusan was vitiated by an error in law as Ext. 5 on which it was based was not admissible in evidence. It appears, however, that even if Ext. 5 is left out of account Dakhila Ext. 6 on , which the court of appeal relied would show that this holding was settled with Phani Bhusan not later than 17-5-1938. In my opinion there is therefore, nothing that would justify us in interfering with the finding of the courts below that there was a bona bide lease in favour of Phani Bhusan prior to the relevant date.
10. Lastly it was contended that as one of the three persons in whose favour the order under Sub-section (8) of Section 37A was made, was dead before the hearing, of the suit and his heirs were not brought on the record, it was not open to this court to go into the question whether the award is void. It is quite true that if Phani Bhusan was dead before the hearing of the suit, the result is that any decree passed by the court in the present suit would not be binding against him or his heirs. That, in my opinion, is, however, no reason why the plaintiff should not get relief as against the defendants Tabiruddin Mallick and Bansi Mallick. If in fact Foyzulla was dead before the hearing of the suit a fact which it is not necessary to investigate in the present appeal the decree will not affect Foyaulla or his heirs and legal representatives at all.
11. As all the grounds taken in the appeal fail, the appeal is dismissed with costs.
12. I agree.