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Bibhuti Bhusan Das Vs. Shebait of Sri Sri Radha Ballav Jiu Thakur Maharajadhiraj Sir Bejoy Chand Mahatap of Burdwan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1942Cal481
AppellantBibhuti Bhusan Das
RespondentShebait of Sri Sri Radha Ballav Jiu Thakur Maharajadhiraj Sir Bejoy Chand Mahatap of Burdwan
Excerpt:
- .....in accordance with the procedure laid down in section 165(1), bengal tenancy act, and fresh proclamation was ordered fixing 17th june following for auction and sale with power to avoid all encumbrances. in the meantime the judgment-debtor had approached a debt settlement board and a notice was issued under section 34, bengal agricultural debtors act, (7 of 1936) staying further proceedings. accordingly the sale was not held. the order of stay was vacated subsequently and the court, on 18th july, then ordered issue of a fresh proclamation fixing 8th august for auction and sale of the tenure again with power to avoid all encumbrances. it is this order which the judgment-debtor wishes to challenge in these proceedings; it is contended that the legal procedure for the court to.....
Judgment:

Roxburgh, J.

1. This rule has been issued at the instance of the judgment-debtor in connexion with a proceeding in execution of a rent decree relating to a tenure. On 28th May 1941, the tenure was put up in auction for sale subject to encumbrances as it failed to fetch a price sufficient to liquidate the amount of the decree and costs, the sale was adjourned at the instance of the decree-holder, in accordance with the procedure laid down in Section 165(1), Bengal Tenancy Act, and fresh proclamation was ordered fixing 17th June following for auction and sale with power to avoid all encumbrances. In the meantime the judgment-debtor had approached a debt settlement board and a notice was issued under Section 34, Bengal Agricultural Debtors Act, (7 of 1936) staying further proceedings. Accordingly the sale was not held. The order of stay was vacated subsequently and the Court, on 18th July, then ordered issue of a fresh proclamation fixing 8th August for auction and sale of the tenure again with power to avoid all encumbrances. It is this order which the judgment-debtor wishes to challenge in these proceedings; it is contended that the legal procedure for the Court to follow now would be to go back and begin afresh with a proclamation under Section 163(2), Bengal Tenancy Act, for sale of the tenure subject to encumbrances, and that then only, if on such new sale taking place the bids are inadequate to liquidate the amount of the decree and costs, can the property be put up for sale with power to avoid encumbrances. The point for decision involves an interpretation of the terms of the Bengal Tenancy Act in Sections 163 and 165 read with the provisions of the Civil Procedure Code, and in particular Rules 67, 68 and 69 of Order 21 in relation to the conduct of sales. In our opinion the procedure followed by the lower Court is correct.

2. Before considering this, we may briefly deal with two objections raised by Mr. Gupta for the decree-holder. His first objection is that the judgment-debtor should not be heard at all in this matter, that the question really arises between the decree-holder, the encumbrancers and whoever may be the purchaser, and that a present decision will not bind them. We think that a judgment-debtor who is a party to the execution proceedings is entitled to see that they are conducted correctly according to law. The decree-holder is purporting to follow the procedure laid down in Ch. 14, Bengal Tenancy Act, and the Court conducting the sale should certainly hear and decide any objections the judgment-debtor may make as to the procedure being adopted. It follows that prima facie the judgment-debtor may move this Court in revision to interfere if the procedure is illegal. In view of the discretionary nature of the power given in Section 115 of the Code the Court might well take into consideration the fact that a person not substantially concerned as to the particular point was moving it, and might make that a reason for refusing to interfere. As we hold that the procedure followed by the lower Court is correct, it is a purely academic question whether, if we were to hold otherwise, we should consider it a fit case or not for interference at the instance of the judgment-debtor. The next objection taken by Mr. Gupta m that as there was a statutory stay of proceedings by operation of Section 34, Bengal Agricultural Debtors Act, and as that Act does not itself provide for what is to be done when the stay is removed, and as, further, the Court's proceedings must be allowed to-continue, it is for the Court by its inherent powers to make suitable provision for this, and that correct provision has been made. But even accepting this as a general proposition the position here is that the law has made provision for what is to be done in regard to adjournment of sales, and what has happened in this case is that there has been an adjournment forced on the Court by operation of law. This dispute then is merely as to what is the correct procedure in relation to adjournments.

3. In virtue of the provisions of Section 148(a), Bengal Tenancy Act, the whole of Order 21, Civil P.C., with the exception of Rule 83 is applicable to suits for the recovery of rent, and this must mean applicable to-execution of decrees in such suits. Nevertheless Ch. 14, Bengal Tenancy Act, engrafts some special provisions of its own on to these provisions of the Code. The sale is to be made in parts; there is first to be a proclamation issued in the form, and published in the manner, provided in Section 163 for sale of the tenure subject to encumbrances. We may note Sub-section (4) of Section 163 which makes a variation of the provisions of Order 21, Rule 68 in that the period of thirty days within which the sale cannot take place is to be calculated from the date on which the copy of the proclamation has been fixed upon the land comprised in the tenure to be sold, and not, as in Rule 68, from the date on which it was fixed on the Court house of the Judge conducting the sale. It is not disputed that so far as regards adjournments at this stage of the sale, Rule 69 of Order 21 would apply, namely that the Court would have discretion to-adjourn, and that if the adjournments were for a longer period than one calendar month a fresh proclamation would be necessary. Rule 69 itself speaks of a fresh proclamation 'under Rule 67' clearly the fresh proclamation in a proceeding under Chap. 14 at this stage would be one under that rule as varied by Sub-sections (2), (3) and (4) of Section 163. The second stage of a sale under chap. 14 is reached when the bids at the sale of the tenure subject to encumbrances fail to cover the specified amount; thereupon Section 165(1) requires adjournment of the sale and a fresh proclamation published in accordance with the procedure provided in Sub-section (3) of Section 163 to be issued announcing that the tenure 'will be put up to auction and sold with power to avoid all encumbrances upon a future day specified therein, not less than fifteen or more than thirty days from the date of the postponement; and upon that day the tenure or holding shall be put up to auction and, sold with power to avoid all encumbrances.' Mr. Mukherjee appearing for the judgment-debtor when placing his argument in its most rigid form contended that in view of this wording the sale must take place on the day specified and on no other, and in cases of failure, then the decree-holder must, go back and start afresh under Section 163. When, pressed with the untenability of this view he conceded that there might be adjournments if, say, the sale had been fixed for the sixteenth day, to any day up to the thirtieth day from the date of the postponement. We are however unable to see that the wording of the sections requires this interpretation nor to accept the view that the terms of this special provision for early sale prohibit the operation of Rule 69 to allow for any adjournments necessitated by circumstances. It follows also that if adjournments take the proceedings beyond the period of one month from the date fixed for the sale, Rule 69 will operate to require a fresh proclamation to be issued.

4. The only difficulty of interpretation is as to which proclamation is required to be issued, whether a fresh proclamation under Section 163 for sale free from encumbrances, or a fresh proclamation under Section 165(1) for sale with power to annul encumbrances. In our opinion, the reasonable and correct interpretation is that the proclamation to be issued is a fresh one of the kind leading to the part of the sale which is being adjourned, namely a proclamation under Section 165 (1) for sale with power to annul encumbrances, and that at this stage the words 'under Rule 67' in Rule 69 are to be interpreted to mean Rule 67 as varied by Section 165(1), Ben. Ten. Act, read with Section 163(3). It follows that the proclamation must be for a sale with power to annul encumbrances, and fixed for a date 'not less than fifteen or more than thirty days from the date of the postponement,' which date of postponement must be the date on which fresh proclamation is ordered. This is the procedure which has been followed by the lower Court in the present case, proclamation having been ordered on 18th July for sale on 8th August, that is to say, for the twenty first day after the date on which proclamation was ordered; the order was correct and calls for no interference. The rule is therefore discharged with costs two gold mohurs. Let the records be sent down at once.

Biswas, J.

5. I agree.


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