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HatemuddIn Sirkar and anr. Vs. Musajjama Sircar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1938Cal176
AppellantHatemuddIn Sirkar and anr.
RespondentMusajjama Sircar
Excerpt:
- .....jurisdiction of the board. it seems pretty clear what was the decisive reason which induced the learned munsif to pass this order. when the petitioners applied for time on 31st march the decree-holder objected on the ground that the application was a mere dodge to enable the petitioners to go to a board. there was apparently an under-taking given by the petitioners that they would not go to a board and the learned munsif added that if they did, his order granting time would be vacated. the learned munsif refers to these matters in the very beginning of his order.2. unfortunately, it was impossible to vacate the order granting time and the learned munsif's further proceedings can-not be supported on two grounds. in the first place, there was no evidence whatever before him which would.....
Judgment:
ORDER

Henderson, J.

1. This is a Rule calling upon the decree-holder to show cause why a sale should not be set aside. The facts are these. On 31st March the petitioners deposited a sum of Rs. 30 and asked for time on the ground that they would try and negotiate a private sale of the mortgaged property. They were granted time upto 20th April. In the meantime the petitioners had recourse to a Board appointed under the provisions of the Bengal Agricultural Debtors Act and the Chairman of the Board gave notice of the application to the Munsif in accordance with the provisions of Section 34 of that Act. The Munsif refused to take any action, but brought the property to sale on the ground that the petitioners did not reside and the property was not situated within the jurisdiction of the Board. It seems pretty clear what was the decisive reason which induced the learned Munsif to pass this order. When the petitioners applied for time on 31st March the decree-holder objected on the ground that the application was a mere dodge to enable the petitioners to go to a Board. There was apparently an under-taking given by the petitioners that they would not go to a Board and the learned Munsif added that if they did, his order granting time would be vacated. The learned Munsif refers to these matters in the very beginning of his order.

2. Unfortunately, it was impossible to vacate the order granting time and the learned Munsif's further proceedings can-not be supported on two grounds. In the first place, there was no evidence whatever before him which would entitle him to say that the petitioners do not ordinarily reside or that the mortgaged property is not within the jurisdiction of the Board. In the second place, this is not a matter which was within jurisdiction of the learned Munsif at all. If there is any dispute on this matter, it is to be decided by the appellate officer appointed under Section 40 and that officer is precluded from entertaining such an objection unless it was taken at the earliest opportunity before the Board to which the application was made. This Rule must, accordingly, be made absolute, the sale of the property set aside and the Munsif directed to proceed in accordance with law. I make no order as to costs.


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