SUDHENDU NARAYAN DEB Vs. RENUKA BISWAS

JUDGEMENT

(1.) This appeal is preferred by defendant-judgment-debtor appellant against an order dismissing his application under section 47 of the Code of Civil Procedure briefly in the following circumstances: -

(2.) A mortgage suit was filed by some of the heirs of one Smt. Prakashini Biswas in the Third Subordinate Judge's Court at Alipore for enforcement and sale of 2/3rd share of Premises No.117/A, Rash Behari Avenue, Calcutta, mortgaged by the predecessor of the present appellant, Raja Abhoy Narayan Deb. In this suit, the predecessor of the present respondent No.5 was added as property-forma defendant and transferred to the category of plaintiffs. A preliminary decree was passed in all for Rs.51,570 but provisions were made in the decree for realization of 2/3rd of this amount by the original plaintiffs and 1/3rd by the subsequent transferee decree-holder respondent No.5 of the added plaintiffs by sale of the mortgaged property.

(3.) Ultimately, two execution cases were started by the respective set of decree-holders for realization of the amount in their respective shares by sale of the mortgaged property. These two execution cases, however, were consolidated into one execution case and property mortgaged was ultimately sold on March 15, 1968, as the judgment-debtors failed to pay. Before the sale, an objection under section 47 of the Code was filed on March 4, 1968, mainly on three grounds, namely, that (i) two execution cases were filed for sale of respective shares of decree-holder, (ii) mandatory provisions of section 35 of the Bengal Money Lenders Act were not complied with an (iii) the judgment-debtors Nos.1, 2 and 3 have no saleable interest. But prayer for stay of sale was rejected with the result that the sale was held on March 15, 1968. Thereafter, on April 11, 1968, an application under Order 21, Rule 90 of the Code for setting aside the sale was filed by the present appellant, and on his prayer confirmation of sale was stayed till disposal of this application. On May 18, 1968, the objection under section 47 of the present appellant was dismissed. The present appeal was filed in this Court on July 8, 1968.