NARAYAN CHANDRA MONDAL Vs. PRANNATH GHOSH

JUDGEMENT

(1.) This Rule arises out of an order passed by the District Judge of Murshidabad in a revision case filed before him under Section 40A of the Bengal Agricultural Debtors Act.

(2.) In order to understand how this controversy has arisen between the parties, it will be necessary to state the following facts. One Nritya Lai Grhose deceased father of the two opposite parties obtained a mortgage decree against four brothers out of whom only Bhupal Chandra Mondal, Petitioner No. 5 is alive. The remaining Petitioners are the heirs of other three brothers of Bhupal who were Tarapada, Kashinath and Nitya Gopal.

(3.) The mortgage decree culminated in a mortgage sale at which the mortgaged properties measuring 8.21 acres were purchased by the decree-holder himself for a sum of Rs. 750. There was a balance of Rs. 980-11 out of which Rs. 330-11 was paid in cash and 7.06 acres of land were sold by the judgment-debtors for a consideration of Rs. 600. All these facts would appear from a kobala executed by the judgment-debtors in favour of the decree-holder on December 14, 1936. Several years after, that is, on May 9, 1943, the debtors filed an application before the Debt Settlement Board for restoration of possession of the lands which had been sold at the mortgage sale. This application was rejected by the Debt Conciliation Officer before whom it came up for disposal. The grounds given for rejection of the application was that the lands whereof restoration of possession was sought had been sold by a kobala and so the provisions of Section 37A of the Bengal Agricultural Debtors Act did not apply. An appeal was preferred before the appellate officer who was of opinion that the lands had been sold not by the kobala, hut at an auction sale held in execution of the mortgage decree and so the application was maintainable. Accordingly, the appellate officer remanded the case to the Debt Conciliation Officer for decision according to law. The opposite parties of this rule thereupon filed an application for revision before the District Judge and by an order passed on June 4, 1955, the learned District Judge set aside the order of the Debt Conciliation Appellate Officer. The judgment-debtors have obtained the present Rule in which the propriety and legality of the order passed by the learned District Judge has been questioned.