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Ramendra Nath Mondal Vs. Dhananjoy Mondal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1938Cal261
AppellantRamendra Nath Mondal
RespondentDhananjoy Mondal
Cases Referred and Monindra Mohan Roy v. Bepin Bahari
Excerpt:
- .....matter of this rule.3. then there is a further question as to the exact time when the learned munsif received this notice. it is rather strange to find that he himself does not mention it in the order sheet in connexion with these two orders. the first reference to the petitioner's application to the debt settlement board is to be found in an order made on 26th april upon a petition made by the present petitioner. the learned munsif naturally points out that the execution case had been terminated and there was nothing before him which he could stay.4. now the petitioner's case is that the notice was received by the munsif on 13th march on the very same date that ha dismissed the application filed by the petitioner. there is no evidence whatsoever to show that the notice was received.....
Judgment:
ORDER

Henderson, J.

1. This is a rule calling upon the opposite party decree-holder to show cause why an order rejecting an application made by the petitioner under Section 151 and Order 9, Rule 8, Civil P.C., and an order con-firming a sale held in execution of a decree should not be sot aside. The opposite party obtained a decree against the petitioner for Rs. 546.4-9 on 27th January 1934. Execution proceedings were started and in Miscellaneous Case No. 589 of 1934 certain property was put up to sale and purchased by the opposite party for Rs. 315. The petitioner then filed one of the usual sort of applications under Order 21, Rule 90. As is frequently the case, he failed to appear on the data fixed for hearing on a plea of illness and the application was dismissed. Ha then filed his application under Order 9, Rule 8 and Section 151 of the Code on 28th January 1937. It was dismissed on 13th March and the sale was 'confirmed on 15th March. In the meantime the petitioner had made an application to a Debt Settlement Board established under the provisions of Act 7 of 1936. It is said that a notice issued by the Chairman under the provisions of Section 34 was received by the Munsif on 13th March.

2. It has accordingly been urged in sup. port of this rule that in view of the provisions of that section, the Munsif was bound to stay the proceeding which was before him. On behalf of the opposite party, it has been urged that the alleged debt of Rs. 315 had ceased to exist and there was therefore nothing to call this section into play. This question has been very recently considered in the two oases in Nrishinga Charan Nandi v. Kedar Nath : AIR1937Cal713 and Monindra Mohan Roy v. Bepin Bahari (1937) 41 CWN 1366. They entirely support this view. It was contended on behalf of the petitioner that the present case is distinguishable because the price paid for the property was not sufficient to extinguish the whole debt. In my opinion, that does not make the slightest difference. The practical result was that after the sale there was a debt of Rs. 231.4-9 instead of a debt of Rupees 546-4-9. No doubt, if the opposite party were to make any attempt to realise this balance, Section 34 would come into play; but it has no effect upon the subject matter of this rule.

3. Then there is a further question as to the exact time when the learned Munsif received this notice. It is rather strange to find that he himself does not mention it in the order sheet in connexion with these two orders. The first reference to the petitioner's application to the Debt Settlement Board is to be found in an order made on 26th April upon a petition made by the present petitioner. The learned Munsif naturally points out that the execution case had been terminated and there was nothing before him which he could stay.

4. Now the petitioner's case is that the notice was received by the Munsif on 13th March on the very same date that ha dismissed the application filed by the petitioner. There is no evidence whatsoever to show that the notice was received before this order was passed. It seems very doubtful whether the notice was received on 13th March at all. It does not bear the seal of the Munsif's Court nor is there any endorsement by him as to the date when it was received. There is merely a note initialled by some unknown person to the effect that it was received on 13th March. There is something distinctly suspicious in the matter and the petitioner has entirely failed to show that the notice was received by the Munsif before either of these orders was passed. It was further contended on behalf of the opposite party that even if the notice was really received on 13th March, the Munsif would not be precluded from confirming the sale on 15th. The argument; made was to the effect that this matter was purely automatic) and it would be impossible to say that there was a proceeding pending before the Munsif on that date. In view of the failure of the petitioner to show when the notice was received, it is not necessary to decide this point. The rule is accordingly discharged with costs. Hearing fee one gold mohur.


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