Girija Kanta Roy v. Tuni Bibi And Ors. Opposite Party

The Judgment of the Court was as follows:—

The Petitioner who is an auction-purchaser obtained this Rule under sec. 135 of the Code of Civil Procedure under the following circumstances:

The Opposite Party No. 3 who is the landlord, in execution of a decree for rent had certain immovable properties owned by the Opposite Parties Nos. 1 and 2, sold on the 15th March, 1937. The Petitioner purchased these at the auction held on that day and paid Rs. 140, the decree for rent being for Rs. 85-9-9. Thereafter, the 17th April, 1937, was fixed for the confirmation of the sale. The learned Munsif on the 12th April, 1937, received a notice from the Debt Settlement Board of Danya purporting to be under sec. 34 of the Bengal Agricultural Debtors Act, 1936, (Bengal Act VII of 1936) and passed an order staying all further proceedings. On the 23rd April, 1937, the Petitioner submitted a petition under sec. 151 of the Code of Civil Procedure praying that the order may be vacated and sale confirmed. It appears that on the 9th August, 1937, the learned Munsif received intimation that the Debt Settlement Board had finally disposed of the matter and settled the debt. Subsequently the learned Munsif heard the Petitioner's application under sec. 151 of the Code of Civil Procedure in the presence of the parties and dismissed it.

It is from this order that the present Rule has been obtained.

On behalf of the Petitioner it was contended that on the date the notice under sec. 34 of the Bengal Act VII of 1936, was issued there was no debt in existence, it was wiped off by the auction-sale. In support of this contention reliance was placed on the following cases: Nrishingha Chandra Nandi Chowdhury v. Kedarnath Chowdhury , Manindra Mohan Roy Talukdar v. Bepin Behary Talukdar , Ramendra Nath Mandal v. Dhananjoy Mandal and Jatindra Mohan Mandal v. Ellohie Bux .

On behalf of the Opposite Party it was urged that in these cases the decree-holder himself was the purchaser and was allowed to set off his dues against the price before the receipt of the notice under sec. 34 and all that was held was that as soon as the application for set off was allowed, the debt, was extinguished. In support of this proposition the following cases were cited.

Jagabandhu Saha v. Rashmani Dasya , Nrishingha Chandra Nandi Chowdhnry v. Kedarnath Chowdhury , Jagabandhu Roy Choudhury v. Bhasai Bepari and Venkata Madhava, Rao v. Garapati Narayanamurly .

No doubt in these cases the purchases are by the decree holder himself and in some of them stress is laid upon the fact of set off, but in my judgment the real principle is that on a sale the debt due under the decree under execution ceases to exist. It makes no difference in principle whether the decree-holder or a stranger is the purchaser. In the view that I am taking I am supported by a decision of a Division Bench of this Court which has been relied upon by the Petitioner, namely Jatindra Mohan Banik v. Surendra Mohan Roy Chowdhury , where the principle has been formulated in the following terms:—

“The trend of decisions of this Court is to the effect that once a sale has taken place the debt has ceased to exist to the extent of the purchase price and therefore there is no proceeding pending with regard to the amount of the debt in the Civil Court and at that stage the notice under sec. 34 of the Bengal Agricultural Debtor's Act can have no effect. As between the sale and confirmation thereof various kinds of proceedings may take place bat these will not be treated as keeping the proceedings pending with regard to the debt which is mentioned in the notice. We are not prepared to extend the operation of the Act by reason of other matters coming in after the sale, such as applications for rateable distribution, or for setting aside a sale and so on. This view is confirmed by the previous decisions of this Court.”

The Rule is made absolute with costs. The order of the Court below is set aside and that Court is directed to confirm the sale and put the auction-purchaser in possession—hearing-fee one gold mohur.

C.C