Narayan Chandra Mondal vs Prannath Ghosh

Renupada Mukherjee, J.—This Rule arises out of an order passed by the District Judge of Murshidabad in a revision case filed before him u/s 40A of the Bengal Agricultural Debtors Act.

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.

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.

Mr. Roy appearing on behalf of the decree-holders opposite parties took a preliminary objection before me contending that the Rule has abated on account of the death of the original Petitioner No. 1, Narayan Chandra Mondal, and so it is not maintainable at the instance of the remaining Petitioners. Mr. Basu appearing on behalf of the Petitioners submitted, on the other hand, that the Rule can be proceeded with by the remaining Petitioners. In support of his contention he cited two cases before me, one of which is reported in Gopi Ballav Mondal v. Aswini Kumar Mondal (1947) 51 C.W.N. 859 and the other in Ramani Mohan Sen v. Nilabja Barani Debi (1953) 58 C.W.N. 147. It has been held in these cases that an application u/s 37A of the Bengal Agricultural Debtors Act is maintainable at the instance of some of the debtors. Mr. Roy contended on behalf of the opposite parties that the present case can be distinguished from the above two cases inasmuch as here the original application was made by all the debtors in a body and as the rule was discharged in respect of one of the Petitioners on account of his death, the remaining Petitioners should not be permitted to prosecute the Rule. In my opinion this contention cannot be supported, because on principle there is no difference between the present case and the cases mentioned above wherein it has been laid down that it is permissible for some out of several judgment-debtors to make an application for restoration of possession of auction sold lands provided they are debtors. In these circumstances, I overrule the preliminary objection raised oil behalf of the opposite parties and hold that the rule is maintainable at the instance of the surviving Petitioners.

I now crime to the merits of the case. It is admitted that some of the original judgment-Debtors and the heirs of other deceased judgment-Debtor filed an application before the Jamuar Debt Settlement Board for restoration of possession of 8.21 acres of land which had been purchased by the predecessor of the opposite parties at a mortgage sale. After the abolition of the Board the charge of the Board was taken up by the Debt Conciliation Officer before whom the application came up for disposal. The latter was of opinion that the properties whereof restoration of possession was applied for were sold not at an auction sale, but by a kobala executed by the Judgment-debtors. On appeal the appellate officer was of opinion that this view of the Debt Conciliation Officer was incorrect and that the lands in question measuring 8.21 acres had been purchased by the decree-holder at an auction sale and so he remanded the case for hearing on merits, in accordance with law. In revision the learned District Judge took a different view from the appellate officer and agreeing with the view taken by the Debt Conciliation Officer he dismissed the application of the debtors made u/s 37A of the Bengal Agricultural Debtors Act.

Mr. Roy appearing on behalf of the decree-holders opposite parties submitted that in this case the decree-holders opposite parties really derived their title under the kobala and not by virtue of an alleged auction-purchase, and so the case does not come within the purview of Section 37A of the Bengal Agricultural Debtors Act. In support of this contention Mr. Roy referred me to a case reported in Paniruddin Amin v. Mantazvddin Bepari (1947) 52 C.W.N. 102. This case has also been referred to in the judgment of the learned District Judge. I am clearly of opinion that this case has been misread by the learned District Judge because in that case the decree-holders purchasers brought a title suit because of their failure to get possession. The title suit was compromised eventually and the decree-holders claimed title on the basis of the compromise decree and not of the auction-purchase. Their title as auction-purchasers had disappeared. In the present case, however, a bare perusal of the kobala dated December 14, 1936 would show that the title of the original decree-holder by auction-purchase subsisted and that title was never lost. It is no doubt true that in the concluding portion of the kobala it was stated that the judgment-debtors gave 8.21 acres of auction sold lands and 7.06 acres of kobala lands to the decree-holder in full satisfaction of his dues and the decree-holder released his attachment of other properties of the judgment-debtors. This statement-by no means amounts to an accrual of title of the decree-holder under the kobala so far as the auction-purchased 8.21 acres of lands are concerned. In an earlier portion of the kobala there is a distinct recital that this quantity of lands had been auction-purchased for a sum of Rs. 750 and the decree-holder had also succeeded in getting delivery of possession of the same. In these circumstances, it cannot be said in any way that so far as the disputed 8.21 acres of lands are concerned, the heirs of the original decree-holders derived their title by virtue of the kobala in question and not by virtue of the auction-purchase held in execution of the mortgage decree. That being the case the application of the Petitioners to get restoration of possession in respect of those lands comes within the purview of Section 37A of the Bengal Agricultural Debtors Act and the Debt Conciliation Officer was not right in refusing to deal with the application on merits, and the learned District Judge was also wrong in supporting that view.

Mr. Roy lastly contended on behalf of the opposite parties that in any event this is not a fit case where I should interfere in exercise of my revisional jurisdiction. To this contention of.

Mr. Roy I may only say that the learned District Judge has acted with material irregularity in the exercise of his jurisdiction by not properly reading the kobala. on which the present case is based and by putting a construction upon it which is entirely wrong. In my opinion, the High Court should interfere in revision where errors of his nature are committed by lower courts.

In the result this Rule is made absolute and the order passed by the learned District Judge is hereby set aside and the order of the appellate officer is restored.

Parties will bear their own costs in this case.