1. This rule arises out of proceedings under Section 37A (8), Bengal Agricultural Debtors Act. The judgment-debtors obtained an award and order for restoration and applied to the Munsif, 1st Court, Baruipur, under the provisions of that sub-section. Objection was made by the present petitioners (who were opposite parties Nos. 15 and 16 in that petition) on the basis of a lease from the landlord. It is unnecessary for me to give details of the nature of the objection. The objection was overruled. The objectors were not parties to the proceedings under the Bengal Agricultural Debtors Act, a position which is quite in accordance with the decision in Taraprasanna Roy v. Adwaita Charan, A. I. R. (35) 1948 Cal. 329 and subsequent decisions.
2. On behalf of the petitioners, my attention has been called to the case of Narayan Chandra v. Rash Behari, Civil Revn. C. N. 1721 of 1946 : (I. L. R. (1948) 2 Cal. 68) in which it was held by Mukherjea and Ormond JJ. that where the judgment-debtor was obstructed in endeavouring to get possession through Court under Section 37A (8) he could make an application under Order 21, Rule 97, Civil P. C. The Bengal Agricultural Debtors Act itself provides no procedure for the Court to follow in a proceeding under Section 37A (8) of that Act which has many affinities with a proceeding under Section 144, Civil P. C. The case cited amounts to a decision that the proper procedure for a Court to follow is the procedure of the Code in regard to execution of decrees.
3. The ground on which this rule was obtained was that the order of the learned Munsif directing restoration to applicants 1 to 4 and incidentally overruling the objections of opposite parties 15 and 16 was incorrect. In argument here however a different position was taken and on the basis of the case cited it was urged that the objection of the objectors should not have been dealt with by the lower Court in the proceedings under Section 37A (8).
4. On behalf of the opposite parties, it is in turn objected that the petitioners ought not now to be allowed to change their ground.
5. If the procedure indicated in the case cited is followed, there can be no doubt that the objectors as lessees from the landlord were not entitled to be beard at the time when the application was made under Section 37A (8). The proper time for them to be heard was if and when delivery of possession was sought to be given they resisted delivery when the applicants under S. 37A (8) could come in with an application under Order 21, Rule 97, Civil P. C. as laid down in that case, or in the event that the objectors were dispossessed they could come in under Order 21, Rule 100. Even if the present order stands, in my opinion, they could still come before the Court in the manner above indicated and take the objection that the decision in the order of the learned Munsif so far as it affected the objectors, opposite parties 15 and 16 was without jurisdiction; in other words, that the decision was not res judicata. In that view of the matter, it is not necessary for me to decide whether the decision overruling the objection is right or wrong. It is sufficient if I make it clear that so far as the present petitioners are concerned, it is without jurisdiction and the matter of their rights and position still remains open to be decided, if at all, in proceedings under Order 21, Rule 97 or Rule 100 as the case may be.
6. The result is that the present rule is discharged. I make no order as to costs.