Jagabandhu, Gobinda ... v. Bhusai Bepari And Ot...

1. This rule must be made absolute. The rule was issued against the order of the learned Subordinate Judge staying further proceedings in execution of a decree. The facts are that the judgment, debtors' properties were sold in pursuance of a money decree. Subsequently an application under O. 21, R. 90 of the CPC, was filed by the opposite party to have the sale set aside. It was then agreed between the parties that if the amount mentioned in the application due under the decree, was paid within a specified period, i.e within six months from the date, the sale of the property would be set aside, otherwise the sale would be confirmed.

2. No such payment was made, but when the case came up for final disposal an application was made stating that the matter has been referred to the Debt Settlement Board, Baipura and on this ground the stay was applied for and granted by the learned Subordinate Judge. In view of the decisions reported in 41 CWN 13071 and 41 CWN 13662 the order passed by the learned Subordinate Judge was without jurisdiction and it cannot be supported.

3. There is a farther consideration that in view of the order passed by the learned Judge himself on 5th December 1986, the only course open to him was to confirm the sale on failure to deposit the money within six months. This rule is accordingly made absolute and the order complained of is set aside.

D.S/R.K

4. Rule made absolute.