BONAMALI PRAMANIK Vs. RADHAGOBINDA GHOSH

JUDGEMENT

(1.) In R.S. No. 404 of 1935 one Radha Gobinda Ghose, landlord, obtained a rent decree against the tenant Bon Behari Pramanik and two others. In execution of that decree he purchased the defaulting jote on 19-3-1987 and took delivery of possession of the same on 28-8-1937. The judgment-debtors thereafter, sometime in 1943, made an application under Section 37A, Bengal Agricultural Debtors Act, before the Chandaikona Debt Settlement Board for setting aside the sale and getting back possession of the property sold. The Debt Settlement Board, on 30-9-1943 made an award purporting to be under the said Section 37A of the Act, in favour of the applicants holding that the decree-holder had recovered more than what was due to him and that nothing further remained due from the applicant to the decree- holder. The applicants thereafter filed the award before the executing Court as required under Section 37A(8) of the Act and the Court then on 19-8-1944, passed an ex parte order directing delivery of possession to the applicants judgment-debtors.

(2.) Against that order the decree-holder appealed and the learned Judge in the Court below reversed the decision of the Court of first instance and dismissed the application of the judgment-debtors for restoration of possession. Being dissatisfied with the order of the learned Judge in the Court of appeal below the judgment-debtors preferred the present appeal.

(3.) It has been urged before me by the learned Advocate on behalf of the appellants that no appeal lay before the lower appellate Court, as the order passed by the Munsif does not fall within the scope of Section 47, Civil P.C. It is said that the application by the judgment- debtors on the basis of Section 37A of the Act cannot be considered to have any connection with the execution, discharge or satisfaction of the decree within the meaning of Section 47, Civil P.C. Section 37A(8) of the Act, however, lays down that the civil Court shall on getting a copy of the award direct that the sale be set aside, etc. etc., and the debtor...be restored to possession of the property, etc. etc. It seems to me, therefore, that if there be a dispute with regard to the question of restoration of possession after setting aside the sale, the matter will relate to execution of the decree and would, therefore, come within the scope of Section 47 of the Code.