Bijoy Gobinda Basu v. Noakhali Loan Office Ltd.

Akram, J.:— This appeal by the Plaintiff arises out of a suit for a declaration that all proceedings in Execution Case No. 57 of 1936 of the 2nd Munsif's Court, Noakhali, after the receipt of a notice under sec. 34 of the Bengal Agricultural Debtors Act from Durgapur Rasulpur Debt Settlement Board on the 18th December, 1937, were void, illegal and ultra vires.

2. The trial Court decreed the suit in part but the lower Appellate Court dismissed it; the Plaintiff thereupon preferred the present appeal.

3. It appears that the Defendant No. 1 in execution of a mortgage decree against the Plaintiff and the pro formâ Defendants (Execution Case No. 57 of 1936) had the mortgaged properties sold on the 24th September, 1936; some of the properties were purchased by the decree-holder and some by others, the Defendants Nos. 2, 3 and 4; on the 17th November, 1936, the Plaintiff and the pro forma Defendants filed an application under Or. 21, r. 90, Civil Procedure Code for setting aside the sale; the sale was set aside ex parte on the 20th March, 1937, and an appeal therefrom was dismissed on the 3rd July, 1937, an application was thereupon made before the High Court by the auction-purchasers and a Rule was issued on the 8th November, 1937, and finally the case was remanded to the trial Court on the 15th February, 1938, for a hearing on the merits.

4. On the 9th December, 1937, however, the (Plaintiff) judgment-debtor made an application to the Durgapur Rasulpur Debt Settlement Board for a settlement of this debt and a notice of this application under sec. 34, Bengal Agricultural Debtors' Act was received by the Munsif's Court on the 18th December, 1937. Notwithstanding this notice the Court proceeded to hear the application for setting aside the sale pursuant to the order of remand and ultimately dismissed it on the 30th April, 1938; the Execution Case was thereafter revived and the sale was confirmed on the 12th May, 1938.

5. It was urged before us on behalf of the Appellant that after receiving the notice aforesaid on the 18th December, 1937, the trial Court had no jurisdiction to proceed with the application for setting aside the sale and to revive the execution case and confirm the sale; that as the sale was set aside on the 20th March, 1937, the “debt” revived, so that the operation of secs. 33 and 34 of the Bengal Agricultural Debtors' Act was attracted to the proceeding; that a mere deposit of the purchase-money by the third party auction-purchasers was not sufficient to wipe off the debt and reliance was placed upon the decision in the case of Braja Bashi Ray v. Nagar Bashi Choudhury(1) in support.

6. We do not think however that the above-mentioned decision cited by the Appellant is applicable to the present case. The decision in the present case seems to us to depend upon the effect of the order dated the 15th February, 1938, passed by the High Court setting aside the order of the Courts below setting aside the sale; in our opinion that order had the effect of wiping off the debt retrospectively; as the debt was satisfied by the sale, sec. 34 of the Bengal Agricultural Debtors' Act had no application and consequently the trial Court was not obliged to stay these proceedings, vide the cases of Nri-shingha Chandra v. Kedar Nath(2) and Girija Kanta Roy v. Tuni Bibi(3).

7. As to the deposit by the third party auction-purchasers, the finding of the lower Appellate Court is that the balance of the purchase-money was deposited on the 7th October, 1936, i.e, “long before the 18th December, 1937,” and “by this deposit the entire decretal dues (Rs. 2,300 and odd) were satisfied.”

8. In the above circumstances we are of opinion that there was no debt or unsatisfied decree before the learned Munsif which required the proceedings before him to be stayed under the provisions of the Bengal Agricultural Debtors' Act.

9. We accordingly agree in the view taken by the learned District Judge in the Court of Appeal below and dismiss this appeal with costs. The hearing-fee is to be divided equally between the two sets of appearing Respondents.

Edgley, J.:— I agree.

P.C