ABDUL KHALEQUE Vs. MEDASWAR HOSSAIN

JUDGEMENT

(1.) The main and significant question of law raised by this second appeal is whether the intermediary's right to compensation under the West Bengal Instates Acquisition Act can be sold under a Mortgage decree at the instance of the mortgagee with whom the intermediary mortgaged the three items of properties in suit. The sale proclamation in this case under the mortgage decree relates to three items--Hems Nos. 1. 2 and 3 valued respectively at Rs. 450. Rs. 325 and Rs. 225 amounting altogether to a sum of Rs 1000.

(2.) The facts giving rise to this question of law may be briefly stated al the outset. The mortgage in this case is dated 17th August 1934. The mortgagor failed to pay the debt and a suit was brought by the mortgagee upon that mortgage. A preliminary mortgage decree was passed on the 20th March 1950. It was followed by the final decree for sale on the 13th March 1952. The execution of the mortgage decree started on the 31st July, 1953, and the dues to the morgagee-decree-holder were calculated to be Ks. 91t-5-3p. Thereafter, the significant event that took place was the nationllsation of lands. On the 15th April, 1955 the estates vested in the State of West Bengal under the West Bengal Estates Acquisition Act 1953. The result was that the mortgaged properties in this suit could no longer be sold under the mortgage decree What the mortgagee-decree-holder did was to make an application on the 13th November 1966 to sell the mortgagor's right to compensation that was payable to the mortgagor under that Act. On the 30th November, 1956 the sale proclamation was issued, as I have said, stating that what was to be sold was "sale of the right to compensation" valued at the said three figures of Rs. 450. Rs. 325 and Rs. 225.

(3.) Then begun the legal batlles. The present appellant is the 5th judgment-debtor Abdul Khaleque. He filed an application under Section 47 of the Code of Civil Procedure taking the point thai since the land vested in the State of West Bengal the mortgagee-decree-holder could not put the disputed properties to sale any more and that the deeree-holder was not entitled to put to sale the right to the entire compensation. It was also contended in that application that the decree-holder had not adopted the right procedure for sale of the right to compensation. It was contended that the right to compensation could not he sold under the law. The learned Munsif who dealt with that application, under Section 47, rejected it. The judgment-debtor appealed to the District Judge. The learned District Judge dismissed the appeal. From that decision the present appellant filed this Second Appeal raising the question stated above. The learned District Judge records the faet that no specific sum of money has reached the hands of the Collector on account of compensation for the disputed properties and in fact the amount of compensation has not yet been fixed. That was the record of fact on the 30th March, 1960 when the lower appellate Court dismissed the appeal.