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Ahmad Ali Vs. Fajarali Rasuli - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1938Cal869
AppellantAhmad Ali
RespondentFajarali Rasuli
Cases ReferredBaijnath Tamakuwalla v. Tormull
Excerpt:
- .....july the judgment-debtor filed a copy of a rubakari from the debt settlement board whereupon the munsif stayed further proceedings in the execution case, but subsequently on 20th august on the petition of the decree-holder, the munsif vacated the order of stay, confirmed the sale and dismissed the execution case on part satisfaction. against that order the judgment-debtor filed a petition purporting to be under section 151 and also under order 21, rule 90, civil p.c., alleging that the process had not been served and also that as the notice under section 34 was issued before the sale, the sale was void. the munsif held that notice had been properly served and also that no notice under section 34 had been received before the sale was held. in that view he dismissed the petition by his.....
Judgment:
ORDER

1. The petitioner in this rule is the judgment-debtor in an execution case pending before the Munsif, Sixth Court at Comilla. It appears that sometime after the filing of the execution case the judgment-debtor started proceedings before a Debt Settlement Board. It is said that the Board issued a notice for stay of proceedings under Section 34, Bengal Agricultural Debtors' Act, but it is admitted that the notice had not been received by the Munsif's Court. ' The sale in the execution proceedings took place on 17th July 1937 and 20th August following was fixed for orders as to set-off and confirmation of sale, the decree-holder being the purchaser. It appears that on 26th July the judgment-debtor filed a copy of a rubakari from the Debt Settlement Board whereupon the Munsif stayed further proceedings in the execution case, but subsequently on 20th August on the petition of the decree-holder, the Munsif vacated the order of stay, confirmed the sale and dismissed the execution case on part satisfaction. Against that order the judgment-debtor filed a petition purporting to be under Section 151 and also under Order 21, Rule 90, Civil P.C., alleging that the process had not been served and also that as the notice under Section 34 was issued before the sale, the sale was void. The Munsif held that notice had been properly served and also that no notice under Section 34 had been received before the sale was held. In that view he dismissed the petition by his order dated 2nd January 1938. Against that order the present rule has been obtained.

2. The only point that is raised in this rule is that the execution sale must be void since a notice under Section 34, Bengal Agricultural Debtors' Act, was issued by the Debt Settlement Board, although it is conceded that the notice had not been actually received by the Civil Court. In support of this contention we are referred to the case in Hukum Chand Boid v. Kamalanand Singh (1906) 33 Cal 927. There it was held that when the Appellate Court made an unconditional order for stay in execution the operation of the order was not postponed until it had been communicated to the Subordinate Court, but it became operative the moment it was made. This principle cannot be applied to the present case for the simple reason that it is not a case of a Superior Court making an unconditional order for stay upon an inferior Court. The present proceedings are based upon a Section in a special Act which, in the circumstances, must be strictly construed. Section 34, Bengal Agricultural Debtors' Act, provides for stay and abatement of suits and proceedings when on an application, being made to the Board under Section 8, or a statement being filed under Section 13 'the Board shall give notice thereof to such Court in the prescribed manner.' The expression 'give notice' to my mind implies not only the issue of notice but also the receipt of notice by the Court. The learned advocate for the petitioner has drawn our attention to the case in Baijnath Tamakuwalla v. Tormull : AIR1938Cal455 and the remarks of Ameer Ali J. at p. 484. I do not understand Ameer Ali J. to mean that the proceedings in the Court must be automatically stayed, although the Court had not actually received notice under Section 34. If that is what the passage is intended to mean, I should respectfully differ. Section 33 and Section 35 provide for bar to suits and execution proceedings. Section 34 makes a different provision, namely stay of suits or proceedings already instituted. In my opinion, there is no warrant for holding that before the notice for stay is actually received by the Court in which the suit or proceedings is pending, such suit or proceeding must be held to be void simply because a notice has been issued by the Board but not actually received by the Court. The present application must therefore be refused. The rule is accordingly discharged. There will be no order as to costs. The learned advocate for the opposite party has also contended that the present application is incompetent by reason of the fact that it is open to the petitioner to file an appeal. In the view that we have taken it is not necessary to deal with that point.


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