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Kashi Nath Sarkar and ors. Vs. Sonaulla Sheikh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1942Cal232
AppellantKashi Nath Sarkar and ors.
RespondentSonaulla Sheikh
Cases ReferredAbdul Latif v. Abdul Gani Serang
Excerpt:
- .....could be stayed by a notice under section 34. the decisions cannot throw any light on the present question.2. the present case will really depend upon whether it is possible to divide the decree into two absolutely distinct parts. under the substantive law the respondent is not liable to be ejected if he pays the arrears. now supposing the board did make an order for instalments in his favour, it would be quite useless from his point of view, if he were to be ejected as long as he did not default in the payment of an instalment. whatever may be the legal aspect of the matter, it is really impossible to divorce one part of the decree from the other in any practical sense. a very similar question arose for decision before a division bench of this court in abdul latif v. abdul gani.....
Judgment:

Henderson, J.

1. This appeal is by the decree-holders. They obtained a decree under Section 66, Ben. Ten. Act. Under that decree the respondent could have saved himself from ejectment by paying the decretal amount into Court. He did not pay but went to a Debt Settlement Board. Notice under Section 34 of the Act was sent to the Court. The Munsif decided that he would stay the execution of the actual decree for rent but proceed with the execution of the decree for ejectment. The respondent appealed and the District Judge directed that the whole execution ease should be stayed. The question for determination is whether the Munsif was entitled to stay a part of the decree only. In support of the appeal, Mr. Sen Gupta attempted to cut the decree into two separate portions. In this connexion it is necessary to point out that the time specified in that decree had not elapsed and that when the respondent applied to the Board, he had still time to save himself from ejectment. Had the period of 30 days elapsed, other considerations of course would arise. In support of his appeal, Mr. Sen Gupta relied upon the decisions of myself and of my learned brother Biswas in Bijoli Bhusan Ghose v. Madhusudhan Ghose ('40) 44 C.W.N. 733 and Mymensingh Loan Office Ltd. v. Basir Sheikh : AIR1940Cal523 . The learned Judge dealt with the matter and, in my view, rightly distinguished those cases from the present. In those cases the question was whether a mere suit for ejectment could be stayed by a notice under Section 34. The decisions cannot throw any light on the present question.

2. The present case will really depend upon whether it is possible to divide the decree into two absolutely distinct parts. Under the substantive law the respondent is not liable to be ejected if he pays the arrears. Now supposing the Board did make an order for instalments in his favour, it would be quite useless from his point of view, if he were to be ejected as long as he did not default in the payment of an instalment. Whatever may be the legal aspect of the matter, it is really impossible to divorce one part of the decree from the other in any practical sense. A very similar question arose for decision before a Division Bench of this Court in Abdul Latif v. Abdul Gani Serang : AIR1939Cal730 . A similar decision was given by my learned brother Mukherjea in the case, as far as I remember of a decree for redemption of a simple mortgage. The question turns upon the definition of a debt in Section 2 of the Act, and the reasoning of Nasim Ali J. applies equally to a case such as the present. The right to redeem really implies the existence of a debt. Otherwise, it would be a quite gratuitous payment of any sum at the option of the payer. A decree under Section 66(2), Ben. Ten. Act is similar to a decree in a suit for redemption. I will just refer to one other argument made by Mr. Sen Gupta which was to the effect that, even if the Board makes an award in favour of the respondent, any payment in consequence of the award would be too late to save him. Now that is a question which cannot be decided now. If Section 34 applies the Court is debarred from deciding anything. I therefore express no opinion on that point. Mr. Sen Gupta also stated that he would be willing to waive his claim to ejectment if the arrears of rent were paid. This offer however was not accepted. The appeal is accordingly dismissed, but in the circumstances of the ease I make no order as to costs.


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