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The Hon'ble Nawab Bahadur of Murshidabad, Sir Syed Wasif Ali Meerza, K.C.S.i., K.C.V.O. Vs. Khandkar Mohamad HossaIn (01.08.1918 - CALHC) - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in49Ind.Cas.465
AppellantThe Hon'ble Nawab Bahadur of Murshidabad, Sir Syed Wasif Ali Meerza, K.C.S.i., K.C.V.O.
RespondentKhandkar Mohamad Hossain
Cases Referred and Srimati Narayani v. Nabin Chandra Chowdhari
Excerpt:
bengal tenancy act (viii b.c. of 1885), section 153 - landlord and tenant--occupancy holding, sought to be sold in execution of money-decree--objection by raiyat, dismissal of--appeal, whether lies. - .....his consent. the munsif rejected the objection.3. the judgment-debtor thereupon appealed to the district judge, who reversed the order of the munsif.4. the decree-holder now appeals and his contention is that against the order of the munsif no appeal lay to the district judge.5. relying on the decision of the full bench in kali mandal v. ramsabaswa chakravarti 32 c. 957 : 9 c.w.n. 721 : 1 c.l.j. 476 (f.b.), the district judge held that an appeal lay on the ground that the order of the munsif in effect decided a question as to an interest in land between parties having conflicting claims thereto.6. the effect of the full bench decision relied upon by the district judge, we may observe, has been much impaired by the exception added to section 153 of the bengal tenancy act by the.....
Judgment:

1. In this case the decree-holder landlord, in execution of what was found to be a money-decree, sought to put to sale the right, title and interest of the. judgment-debtor in a certain non-transferable occupancy holding.

2. The judgment-debtor objected on the ground that the interest could not be sold without his consent. The Munsif rejected the objection.

3. The judgment-debtor thereupon appealed to the District Judge, who reversed the order of the Munsif.

4. The decree-holder now appeals and his contention is that against the order of the Munsif no appeal lay to the District Judge.

5. Relying on the decision of the Full Bench in Kali Mandal v. Ramsabaswa Chakravarti 32 C. 957 : 9 C.W.N. 721 : 1 C.L.J. 476 (F.B.), the District Judge held that an appeal lay on the ground that the order of the Munsif in effect decided a question as to an interest in land between parties having conflicting claims thereto.

6. The effect of the Full Bench decision relied upon by the District Judge, we may observe, has been much impaired by the exception added to Section 153 of the Bengal Tenancy Act by the Amending Acts of 1907 and 1808. Moreover that was a case, between the judgment debtor and the auction-purchaser, But here the property has not been brought to sale. We are of opinion that it cannot be held that in the present case there is any decision as to title between parties having conflicting claims thereto, and' we must, therefore, hold that no appeal lay to the District Judge. In view of the decisions reported as Badarennessa Chowdhurani v. Alam Gazi 23 Ind. Cas. 877 : 19 C.W.N. 814 : 21 C.L.J. 650 and Srimati Narayani v. Nabin Chandra Chowdhari 35 Ind. Cas. 803 : 21 C.W.N. 400 : 25 C.L.J. 351 : 44 C. 720 it may be that the decision of the Munsif was wrong, but there is against that order no application to this Court by the judgment-debtor. It may be that the judgment-debtor has other remedies and he not having made an application to this Court, we must leave him to such remedies as may be still open to him and content ourselves simply with decreeing this appeal on the ground that no appeal lay to the District Judge against the order of the Munsif.

7. Under all the circumstances of the case we make no order for costs in this appeal.


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