SHEKH TAMIZALI Vs. MDNASARALI BHUIYA

JUDGEMENT

(1.) The judgment-debtor is the appellant in this case and the appeal arises with reference to the dismissal of an application filed by the judgment-debtor under Section 47, Civil P. C., in which he sought to set aside an execution sale. It appears that the decree-holder obtained a decree for rent against the appellant on 12 July 1937. On 28 May 1938 he put this decree into execution and the requisite processes had been served by 14 June 1938. On 30 June 1938 the appellant applied to the Debt Settlement Board for the settlement of his debts and he alleges the rent decree which the decree-holder was seeking to execute was included in the application under Section 8, Bengal Agricultural Debtors Act. He maintained that the Debt Settlement Board in due course issued a notice under Section 34 of the Act but, in spite of the issue of this notice, the execution sale was held on 9 August 1938. Thereafter, on 11th November 1938 the appellant applied to the Court under Section 47, Civil P. C., to have this sale set aside. Issues were framed by the trial Court with regard to the question of the maintainability of the application and also on the points whether or not the application to the Board was a bar in respect of the subsequent proceedings in execution and whether the sale was vitiated by reason of the alleged issue of the notice under Section 34, Bengal Agricultural Debtors Act. Although it was decided that the application was maintainable, the other two points were decided against the appellant and the trial Court held that in fact no notice under Section 34, Bengal Agricultural Debtors Act, had been issued by the Board and that in these circumstances the sale which was held on 9 August 1938 could not be impeached by the appellant. The judgment-debtor thereafter appealed to the learned District Judge of Mymensingh and his appeal was dismissed.

(2.) The main point which has been argued on behalf of the appellant in this case is that, in view of the fact that an application had been made to the Debt Settlement Board under Section 8, Bengal Agricultural Debtors Act, which included the decree which was the subject- matter of the execution proceedings in Execution case No. 54/c of 1938, the Court had no option but to set aside the sale under Section 47, Civil P. C., as soon as the fact had been brought to its notice that the application had been actually made to the Board and, in this connexion it was further contended that the non-receipt of the stay order under Section 34, Bengal Agricultural Debtors Act, must be regarded as immaterial. With regard to this matter it may be noted that the appellant places particular reliance upon the provisions of Section 35, Bengal Agricultural Debtors Act. This was a point which was not directly raised in either of the Courts below but, as it involves an important question of law, there is no reason why it should not be raised in this Court.

(3.) In the first place, it has been argued by the learned advocate for the respondents that no appeal lies to this Court having regard to the principles laid down in Prafulla Krishna Deb v. Nosibannessa Bibi ( 17) 4 AIR 1917 Cal 308. In view of the fact that the decree which it was sought to execute was in respect of a sum of Rs. 19-11-6 only this contention must be accepted having regard to the provisions of Section 153 (a), Ben. Ten. Act. At the same time, I am of opinion, for the reasons which will presently appear, that the Courts below have taken an erroneous view of the law with regard to this matter and have acted illegally in the exercise of their jurisdiction. It is, therefore, open to this Court to interfere in the exercise of its revisional jurisdiction under Section 115, Civil P. C. The learned advocate for the appellant in this case, as already pointed out, relies mainly upon the provisions of the first part of Section 35, Bengal Agricultural Debtors Act, which is in the following terms: Notwithstanding anything contained in any Act, no decree of a civil Court or certificate under the Bengal Public Demands Recovery Act, 1913, shall be executed (i) for the recovery of a debt included in an application under Section 8 or in a statement under Sub-section (1) of Section 13, until (a) the application has been dismissed by the Board in respect of such debt; or (b) an award in which such debt is included has ceased to subsist under Sub-section (5) of Section 29. ...