Find a Lawyer

Appeal from Appellate Order No. 9 of 1947, decided on 27th November 1951, against the Order of H. Ali, Subordinate Judge, 2nd Court of Zilla Mymensingh, dated the 9th Septem ber 1946, in Miscellaneous Appeal No. 140 of 1946, reversing the Order of H. Ahmed, Munsif, 3rd Court, Tangail, dated the 16th April 1946.

, S. 47 hVant of registration does not make award incapable of being enforced.

Registration contemplated by section 47 of the Bengal Agricultural Debtors Act has nothing to do with the question of effectiveness. Want of registration does not make the award incapable of being enforced. Subsection (3) of section 25 of the Act lays down in express terms : "From the date of the signing of the award under sub‑section (2) it shall, in super session of all previous decisions of a Civil Court in respect of the debts mentioned in it, be binding on the debtor and his creditors and the successors‑in‑interest of such debtor and creditors".

Nurul Huda for Appellants.

No one for Respondents.

--- This is a debtor's appeal against an appellate order, reversing the order of the Court of first instance on an application under section 37A (8) of the Bengal Agricultural Debtors Act.

The appellants obtained the award on the 7th September 1944, and thereafter applied for relief under section 37A of the Act.

The learned Munsif did not in clear terms set aside the sale but passed his orders on the 16th April 1946 A. D., cor responding to the 3rd Baisakh, 1353 B. S., directing delivery of possession, with effect from the 16th May 1946 A. D., cor responding to the 2nd Jaista, 1353 B.S.

An appeal was taken from this order by the respondent, and the learned lower appellate Court set aside the order of the learned Munsif firstly, on the ground that the award was not registered before presentation to the Civil Court, and secondly. on the ground that the order having been passed on the 3rd Baisakh, 1353 B.S., the Court had no jurisdiction to direct delivery of possession with effect from the 2nd Jaista, 1353 B.S. It was also contended before the learned Subordinate judge that the appeal was incompetent; but he overruled this contention.

Mr. Nurul Huda, appearing for the appellants, has repeated this contention before me. It seems to me, that the learned Subordinate Judge was right in his view. Section 37A (8) of the Act requires the executing Court to set aside the sale and redeliver the property to the judgment‑debtor. Such an order comes within section 47 of the Code of Civil Procedure and is as such appealable. The learned Subordinate judge was not, however, right, as it seems to me, to dismiss the application for want of registration of the award. In my opinion, registration contemplated by section 47 of the Bengal Agricultural Debtors Act has nothing to do with the question of the effectiveness. Want of registration does not make the award incapable of being enforced. Subsection (3) of section 25 of the Act lays down in express terms :‑

" From the date of the signing of the award under sub section (2) it shall, in supersession of all previous decisions of a Civil Court in respect of the debts mentioned in it, be binding on the debtor and his creditors and the successors in‑interest of such debtor and creditors".

But the other ground taken by the learned Subordinate judge is well‑founded. Section 37‑A (8) of the Bengal Agricultural Debtors Act says that the order for restoration of possession , shall be passed "with effect from the first day of Baisakh next following or the first day of Kartick next following, whichever is earlier". The learned Munsif does not seem to have carefully read this section. He passed the orders on the 16th April 1946 A.D., corresponding to the 3rd Baisakh, 1353 B.S. He had no authority to direct restoration of possession, with effect from the 2nd Jaista, 1353 B.S.

In the circumstances stated above I set aside the judg ments and orders passed by the learned Subordinate judge and the learned Munsif and remand the case to the latter for dis posal according to law in the light of the observations herein made.

A. H. Case remanded.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.