RAMENDRA NATH MONDAL Vs. DHANANJOY MONDAL

JUDGEMENT

(1.) This is a rule calling upon the opposite party decree-holder to show cause why an order rejecting an application made by the petitioner under Section 151 and Order 9, Rule 8, Civil P.C., and an order con-firming a sale held in execution of a decree should not be sot aside. The opposite party obtained a decree against the petitioner for Rs. 546.4-9 on 27 January 1934. Execution proceedings were started and in Miscellaneous Case No. 589 of 1934 certain property was put up to sale and purchased by the opposite party for Rs. 315. The petitioner then filed one of the usual sort of applications under Order 21, Rule 90. As is frequently the case, he failed to appear on the data fixed for hearing on a plea of illness and the application was dismissed. Ha then filed his application under Order 9, Rule 8 and Section 151 of the Code on 28 January 1937. It was dismissed on 13 March and the sale was confirmed on 15th March. In the meantime the petitioner had made an application to a Debt Settlement Board established under the provisions of Act 7 of 1936. It is said that a notice issued by the Chairman under the provisions of Section 34 was received by the Munsif on 13 March.

(2.) It has accordingly been urged in sup. port of this rule that in view of the provisions of that section, the Munsif was bound to stay the proceeding which was before him. On behalf of the opposite party, it has been urged that the alleged debt of Rs. 315 had ceased to exist and there was therefore nothing to call this section into play. This question has been very recently considered in the two oases in Nrishinga Charan Nandi V/s. Kedar Nath and Monindra Mohan Roy V/s. Bepin Bahari (1937) 41 CWN 1366. They entirely support this view. It was contended on behalf of the petitioner that the present case is distinguishable because the price paid for the property was not sufficient to extinguish the whole debt. In my opinion, that does not make the slightest difference. The practical result was that after the sale there was a debt of Rs. 231.4-9 instead of a debt of Rupees 546-4-9. No doubt, if the opposite party were to make any attempt to realise this balance, Section 34 would come into play; but it has no effect upon the subject matter of this rule.

(3.) Then there is a further question as to the exact time when the learned Munsif received this notice. It is rather strange to find that he himself does not mention it in the order sheet in connexion with these two orders. The first reference to the petitioner's application to the Debt Settlement Board is to be found in an order made on 26 April upon a petition made by the present petitioner. The learned Munsif naturally points out that the execution case had been terminated and there was nothing before him which he could stay.