TARA PRASANNA CHOUDHURY Vs. ADWAITA CHARAN SAMANTA

JUDGEMENT

(1.) This rule arises out of an application made by the petitioners for relief under Section 37A, Bengal Agricultural Debtors Act, and is directed against two orders made by the District Judge of Burdwan under Section 40A, Bengal Agricultural Debtors Act.

(2.) The facts material for our present purposes may be shortly stated as follows: One Udhharani Devi who is now dead and who was the wife of opposite party No. 1, Rai Saheb Adwaita Charan Samanta, obtained during her lifetime, a mortgage decree against the petitioners. The decree was put into execution in Execution Case No. 115 of 1947 of the Court of the Subordinate Judge at Burdwan, and the mortgaged properties which were six in number were put up to. sale. Pour out of these six properties were purchased by the decree-holder herself, and the remaining two were obstensibly purchased by her son, opposite party No. 2, Narottam Samanta. After Section 37A was introduced in the Bengal Agricultural Debtors Act, the petitioners presented an application under that section for restoration of the properties sold. The decree-holder was dead at that time and her husband who is the executor under her will was the principal opposite party. Narottam Samanta, the son of Uddharani, and in whose name two of the properties were purchased was also joined as an opposite party to the proceeding. The case of the petitioners was that the two properties purchased in the name of Narottam were in reality purchased by the decree-holder herself, and all the six properties were in possession of the decree, holder, and after her death, of her husband and executor Rai Saheb Adwaita Charan Samanta at the material time.

(3.) A preliminary question was raised before the Debt Settlement Board as to whether the Board was competent to enter into the question of benami. It appears that the superior officer of the Debt Settlement Board was consulted, and according to the instructions given by the latter, the Board confined itself to the question of possession merely, and avoided the question of benami. This decision was approved of by the appellate officer and finally confirmed by the District Judge in revision.