SATYA NARAYAN BANERJEE Vs. KARNADHAR DAS

JUDGEMENT

(1.) The decree in connection with the execution of which the present litigation has arisen was passed on December 15, 1939, by this High Court on its Original Side. An application for execution was filed in the fifth court of the Subordinate Judge, 24:Pargands, on November 4, 1951. After some applications of objection under Section 47 of the Code of Civil Procedure proved unsuccessful an order attaching the properties mentioned in the schedule to the application for execution was passed on November 13, 1952. On November 11, 1953 after another application under Section 47 of the Code of Civil Procedure had been filed and dismissed for default the judgment-debtors filed an application purporting to be under Section 35 of the Bengal Money-Lenders Act, in which they prayed that the court should, in accordance with the provisions of Section 35 of the Bengal Money-Lenders Act, specify so much of the property as it considers saleable at a price sufficient to satisfy the decree. The learned Subordinate Judge ordered this application to be registered and fixed December 5, 1953, for filing objection by the opposite party. On the same date an application was filed by the judgment-debtors praying that further proceedings in execution case should be stayed till the application under Section 35 had been disposed of. The learned Judge ordered that the sale would not be stayed but would be held but its confirmation would be stayed till the disposal of the judgment-debtors' application under Section 35 of the Bengal Money-Lenders Act. Quite clearly the learned Judge wholly misconceived the position. It was his own duty to follow the provisions of Section 35 of the Bengal Money-Lenders Act, even though neither party had drawn his attention to it by any application. When such an application was filed it was his bounden duty to pass a proper order thereupon as early as possible. There could be no objection to his giving time to the other party to file objection to the application but it is impossible to understand his view that the sale would be held in spite of the judgment-debtors' application under Section 35 without the provisions thereof being followed. Such a curious view has only to be stated to be rejected.

(2.) We, therefore, allow the appeal, set aside the order passed by the learned Subordinate Judge and direct that he should follow the procedure in accordance with law-including the provisions of Section 35 of the Bengal Honey-Lenders Act-after taking into consideration the application filed in this behalf by the judgment-debtors. There will be no order as to costs.

(3.) I agree.