RAM BALLAV MARWARI AND ANOTHER Vs. RAMESWARLAL GENORIWALLA

JUDGEMENT

(1.) This is an appeal against an order passed by the learned Subordinate Judge, Bankura, dismissing the applications of the judgment-debtor made under Sec. 37A of the Bengal Agricultural Debtors Act, 1955, read with Sections 151 and 152 of the Code of Civil Procedure. The matter arises in this way:

(2.) The Respondent before us and one Brijlal Genoriwalla obtained a decree for Rs. 83,552-15-2 against the Appellant and the other judgment-debtors. Thereafter the Respondent as a result of an amicable partition got the entire decree to himself. He then started two execution proceedings, one for the realisation of a decretal amount and the other for costs, being Title Execution Cases Nos. 261 and 262 of 1937. In the said execution proceedings two-thirds share of the Appellants in the properties in question were sold and purchased by the decree-holder. On Feb. 7, 1939 the decree-holder duly obtained possession of the lands sold in the said execution cases. Thereafter the Bengal Agricultural Debtors (Amendment) Act, 1942, having come into force some of the judgment-debtors including the present Appellants applied to the Debt Settlement Board under Sec. 37A of the said Act and the debt was settled and an award was made by the said Board.

(3.) On Jan. 19, 1948, two applications were made under Sec. 37A(8) of the Bengal Agricultural Debtors Act for restoration of possession by setting aside the award. The said applications gave rise to miscellaneous cases Nos. 46 and 47 of 1948. On May 29, 1948, an order was made in each of the said two cases for possession and the judgment-debtors obtained symbolical possession. On Aug. 13, 1948, the judgment-debtors filed two applications in the two execution cases for actual possession. At the hearing of the said applications it became known that in the earlier applications no order was made for setting aside the sale. The decree-holders, who were served with notices of the said applications, filed petitions of objection under Sec. 47 and the said objections were marked Miscellaneous Cases Nos. 13 and 14 of 1949. On May 31, 1949 the said objections were allowed and the judgment-debtors' application, dated Aug. 13, 1948 was rejected. Thereupon, on July 5, 1949 the judgment-debtors filed two applications under Sec. 37A(8) read with Sections 151 and 152 of the Code of Civil Procedure for a fresh order for possession after setting aside the sale, or in the alternative; for amendment of the order, dated May 29, 1948 by incorporating therein an order setting aside the sale. These two applications gave rise to Miscellaneous Cases Nos. 72 and 73 of 1949. The learned Subordinate Judge dismissed both the applications. It is against the order passed in Miscellaneous Case No. 72 of 1949 that the present appeal has been filed.