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Chowdhury Mohammed Ibrahim and ors. Vs. Saburjan Bewa W/O Kuranu Sarkar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1943Cal624
AppellantChowdhury Mohammed Ibrahim and ors.
RespondentSaburjan Bewa W/O Kuranu Sarkar and ors.
Excerpt:
- .....of the board, the munsif apparently came to the conclusion that the syedpur debt settlement board had no jurisdiction in the case as the plaintiff resided elsewhere, and he accordingly vacated the stay order. the disputed lands were then sold on 15th may 1937 and purchased by defendants 1 and 2 who settled them thereafter with defendants 5 to 9. the plaintiff therefore brought this suit on 1st april 1939, to have the sale declared null and void.2. the trial court dismissed the suit on two grounds : (1) that although the executing court was wrong in ignoring the notice under section 34 of the act merely on the ground of the applicant's residence, nevertheless, this did not deprive the court of jurisdiction to sell the tenancy in execution : there was at most an erroneous exercise.....
Judgment:

Rau, J.

1. This appeal is by defendants 1 and 5 to 9 in a suit brought by the plaintiff for a declaration that a sale held in execution of a certain rent decree against her find her co-tenants defendants 3 and 4 was a nullity and did not affect her interest. The facts are briefly these : the plaintiff and defendants 3 and 4 held the disputed lands as tenants under defendants 1 and 2 on a yearly rent of Rs. 32 odd. In 1935 defendants 1 and 2 brought a suit for rent against all the three tenants and obtained a decree. They put the decree into execution in 1937. After the publication of the sale proclamation, the plaintiff filed an application under Section 8, Bengal Agricultural Debtors Act, before the Debt Settlement Board of Syedpur in which the rent decree was shown as one of the debts. On receipt of the application the Debt Settlement Board issued a notice under Section 34 of the Act to the executing Court. Thereupon the executing Court stayed proceedings, but after certain correspondence with the Chairman of the Board, the Munsif apparently came to the conclusion that the Syedpur Debt Settlement Board had no jurisdiction in the case as the plaintiff resided elsewhere, and he accordingly vacated the stay order. The disputed lands were then sold on 15th May 1937 and purchased by defendants 1 and 2 who settled them thereafter with defendants 5 to 9. The plaintiff therefore brought this suit on 1st April 1939, to have the sale declared null and void.

2. The trial Court dismissed the suit on two grounds : (1) That although the executing Court was wrong in ignoring the notice under Section 34 of the Act merely on the ground of the applicant's residence, nevertheless, this did not deprive the Court of jurisdiction to sell the tenancy in execution : there was at most an erroneous exercise of jurisdiction. (2) That the plaintiff's application under Section 8 in so far as it included this particular debt, was in contravention of Section 9 because it was a debt for which the plaintiff was jointly liable along with defendants 3 and 4, and the evidence was that the defendants had not joined in the application as required by Section 9(1)(b). The trial Court accordingly considered that there was no valid application under Section 8, and therefore no valid notice under Section 84. On appeal the Subordinate Judge reversed the decision of the trial Court and decreed the suit granting the plaintiff the declaration prayed for. On the first of the above two points, the Subordinate Judge held that the holding of the sale after receipt of the notice under Section 34 of the Act was with, out jurisdiction, and that it was not merely a case of erroneous exercise of jurisdiction. The second point does not appear to have been dealt with by him.

3. Both these points have been raised before us. It seems to us plain that on receipt of a notice under Section 84 of the Act, the executing Court has jurisdiction to determine whether the notice is a valid one or not, and to ignore it if it is a nullity. There may be a variety of causes nullifying the notice, for example, it may have been issued to a Court in an area where the Act was not in force, or it may have been issued by a board which had been dissolved, or it may have been issued without there being an application at all under Section 8 and so on. Whatever may be the particular ground of attack in a given case, the executing Court has jurisdiction to decide whether it is such as to make the notice a nullity. If, therefore the Court determines this question even wrongly, the determination cannot be said to be without jurisdiction; it would amount only to an erroneous exercise of jurisdiction to be corrected by the appropriate appellate or revisional authority. This is what has happened in the present case. The Munsif who held the sale of the tenancy may have been quite wrong in treating the notice under Section 34 as a nullity, more especially on the particular ground on which he so treated it; but even so, his decision and the resulting sale cannot themselves be treated as nullities. They were at most errors in the exercise of his jurisdiction to be set right by appropriate proceedings in appeal or revision. We accordingly allow this appeal and dismiss the suit. The parties will bear their own costs in all the Courts.

Sen, J.

4. I agree.


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