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Huro Prosad Roy Vs. Kali Prosad Roy - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1883)ILR9Cal290
AppellantHuro Prosad Roy
RespondentKali Prosad Roy
Excerpt:
civil procedure code (act x of 1877), section 326 - scheme for satisfying decree--stay of public sale of attached property. - .....the chief executive officer of the district would be enabled to liquidate the debts of encumbered land-holders without the immediate sale of their estates, and so to preserve the old landed gentry of the country. the provisions of sections 320 to 325c were inserted in the code of civil procedure, in order to give effect to these suggestions. now, there can be no doubt that when the local government makes a notification under section 320, in regard to any local area, the execution of all decrees of the class specified in that notification, is transferred from the civil court to the collector, and the civil court has no option whatever in the matter. then comes section 326, and this section is clearly intended to provide for isolated cases, in which the collector is of opinion that the.....
Judgment:

Richard Garth, C.J.

1. We think that under Section 326, it is in the discretion of the Court to authorize the Collector or not, as it thinks fit, to provide for the satisfaction of the decree in the manner which the Collector recommends, and for the purpose of effectually exercising that discretion we consider that the Court is bound to hear any objections which may be made by the decree-holder to the feasibility of the proposed scheme, and any evidence that may be offered in support of those objections.

2. It is clear that under Section 320, the word 'may' is used in a discretionary sense only, and it would appear to be used in the same sense in the intervening sections; and there certainly seems good reason why the Court should enquire closely into the feasibility of the Collector's proposal, seeing that its effect would be to deprive the decree-holder of the right, which the law gives him, of executing his decree, and not only so, but to protect the debtor's property during all that time from execution at the suit of other creditors.

3. If upon hearing the decree-holder's objections, and the evidence which may be offered in support of them, the Court is not fully satisfied that the proposal is feasible, or that it can in all reasonable probability be carried out within the specified period, the Court ought, in the exercise of its discretion, to refuse its sanction.

Field, J.

4. Section 326 of the Code of Civil Procedure is as follows: 'When, in any local area in which no declaration under Section 320 is in force, the property attached consists of land or of a share in land, and the Collector represents to the Court that the public sale of the land or share is objectionable, and that satisfaction of the decree may be made within a reasonable period by a temporary alienation or management of the land or share, the Court may authorize the Collector to provide for such satisfaction in the manner recommended by him, instead of proceeding to a sale of the land or share.' In the case which has led to the present reference, the Collector proposed two schemes, both of which were set aside for reasons which it is unnecessary to refer to. The Collector then proposed a third scheme, and the decree-holder alleged that this scheme was not practicable, and asserted that if he were allowed to do so, he could prove this allegation by evidence.

5. The Subordinate Judge was of opinion that he was bound to take the Collector's statement of the scheme, and he declined to receive the evidence offered by the decree-holder.

6. Now, in order to understand the provisions of Section 326, it is, I think, necessary to refer briefly to the preceding Sections 320 to 325C. Section 320 provides as follows: 'The local Government may, with the sanction of the Governor-General in Council, declare, by notification in the Official Gazette, that in any local area the execution of decrees in cases in which a Court has ordered any immovable property to be sold, or the execution of any particular kind of such decrees, or the execution of decrees ordering the sale of any particular kind of, or interest in, immovable property, shall be transferred to the Collector;' and then follow certain provisions which enable the Collector to proceed in a particular manner, in order to the execution of any decree that has been so transferred.

7. Now, the object of these provisions is well known. In different parts of India, the effect of sales in execution of decrees was to transfer landed estates from the old families to modern speculators. A strong opinion was entertained by certain Members of the Government of India, that these results of the administration of civil justice were impolitic and inexpedient; and it was suggested that some procedure might be devised by which the Chief Executive Officer of the district would be enabled to liquidate the debts of encumbered land-holders without the immediate sale of their estates, and so to preserve the old landed gentry of the country. The provisions of Sections 320 to 325C were inserted in the Code of Civil Procedure, in order to give effect to these suggestions. Now, there can be no doubt that when the local Government makes a notification under Section 320, in regard to any local area, the execution of all decrees of the class specified in that notification, is transferred from the Civil Court to the Collector, and the Civil Court has no option whatever in the matter. Then comes Section 326, and this section is clearly intended to provide for isolated cases, in which the Collector is of opinion that the public sale of the land is objectionable, and that satisfaction of the decree may be had, within a reasonable period, by a temporary alienation or management of the land. There is an important difference between the language used in Section 326 and the language used in preceding sections, which latter is imperative. It appears to me that the words in Section 326, 'Court may authorize,' are not imperative, but leave a discretion to the Civil Court. If then the Court has a discretion, that discretion can only properly be exercised upon materials placed before it, and I think that it is open to the decree-holder to place those materials in the shape of evidence before the Civil Court, and to satisfy the Court, as well by evidence as by argument, that the proposal of the Collector is not feasible or practicable. In this view, I would answer both the questions referred to the Full Bench in the affirmative.


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