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Appeals from Appellate Decrees Nos. 1326 and 1327 of 1946, decided on 15th May, 1953, against the Decree of Mr. S. C. Sen Gupta, Subordinate Judge, Additional Court of Zilla Jessore dated the 5th February, 1946, in Title Appeals Nos. 142 and 143 of 1945 reversing the Decree of Mr. Durga Prasad Chatterjee, Munsif, 1st Court Magura, dated the 26th Ma y, 1945.

‑Must be based on legal facts not on suspicion.

The judgment must always be based on legal facts established on legal testimony but not on suspicion.

S. 47 and O. XXI, r. 2‑Adjustment of decree not certified by Court within time ‑‑Court can execute decree‑Sale by Court‑S. 47 not applicable.

The executing Court is not bound to recognise an adjustment of the decree unless it is certified within the limited time, and can execute the decree inspite of such satisfaction if it has not been certified. Such a sale cannot be attached under section 47 of the Civil P. C.

Ss. 15 and 34‑Application dismissed by Settlement Board ---Jurisdiction of Civil Court.

Section 34 of the Bengal Agricultural Debtors Act empowers, the Debt Settlement Board to issue notice to stay a pending proceedings before the Civil Court in respect of the debt which is the subject of application before the Board, and further provides that, if the Board decides that the debt does not exist, the suit or proceeding shall abate, so far as it relates to such debt. The Settlement Board is authorised under section 15 of the Bengal Agricultural Debtors Act to use its best endeavors to induce the parties to arrive at an amicable settlement.

Where in giving the intimation, the cause of dismissal was not stated to the Civil Court it does not affect the position in law. The terms of section 34 is clear. It distinctly says that the proceeding shall abate so far as the Board decides that the debt does not exist. The abatement is not conditional on the information of the decision being given to the Civil Court, the decision itself leads automatically to the abatement of the proceeding before the Civil Court. The executing Court therefore has no jurisdiction to hold the sale.

Prafulla Chandra Nag for Appellants.

A. F. M. Mesbahuddin for Respondents.

These two second appeals arise out of two title suits (Title Suit No. 47 of 1944 and Title Suit No. 50 of 1944). The suit lands appertain to an occupancy raiyati holding which Kanthi Molla held under the Dighapatia Raj Estate which, at the relevant time, was under the management of the Court of Wards. Badaruddin, the plaintiff of Suit No. 50 of 1944, auction‑purchased the holding at a rent sale on the 12th of April, 1943, took delivery of possession through Court and served notices on the under‑raiyats under section 167 of the Bengal Tenancy Act. Thereafter the plaintiff of Suit No. 47 of 1944 took settlement of one of the plots from him. The plaintiffs' attempt to take actual possession was resisted by the defendants who are under -raiyats of the second degree. The plaintiffs then commenced this litigation for recovery of possession on declaration of title.

The suits were decreed by the Court of trial. The lower appellate Court has reversed the decrees. Hence these second appeals by the plaintiffs.

The raiyati holding was the ancestral property of Kanthi Molla, and was inherited by him and his two sisters‑Nasirannessa, the mother of defendant Tainuddin, and Saju Bibi. In the settlement record Kanthi Molla alone was recorded as the tenant. The rent decree had been obtained against Kanthi Molla alone and was put into execution against him on the 3rd of December 1940. During the pendency of the execution case Kanthi Molla applied to the Debt Settlement Board, and, on the 30th of January 1941, the Board served notice on the executing Court under section 34 of the Bengal Agricultural Debtors Act. Thereupon the execution case was stayed. Nasirannessa, the mother of defendant Tainuddin, applied to the Debt Settlement Board to he added as a party, contending that she as a sister of Kanthi Molla was a co‑sharer in the property described in the ‑schedule to the application. Kanthi Molla contested her claim, alleging that she was not his sister. The issue raised by these con tradictory avertments was very hotly contested, and, on the 16th of December 1942, both parties adduced evidence before the Board in support of their respective contentions. The hearing of this case was then adjourned till the 20th of December 1942, when it was again adjourned till the 10th of January 1943. On that date the Board recorded an order that Kanthi Molla had paid off the malik's rent, and the application for settlement was accordingly struck off with the malik's consent. The sudden turn pf event in the application for settlement of debt made it unnecessary to decide the hotly contested question as to whether Nasirannessa was a co‑sharer or not. Intimation of the dismissal of the application was thereafter given to the executing Court under Rule 73 of the rules made under the Bengal Agricultural Debtors Act in form No. 34 ; but all that was stated in the intimation was that the case had been dismissed, and no reference was made as to the cause that had resulted in the order of dismissal. The executing Court received the intimation on the 5th of February 1943, vacated the stay order and passed an order for filing process‑fee and sale pro clamation with direction to inform the decree‑holder's Pleader. On the 12th of February, 1943, a combined order of attach ment and sale proclamation was issued and a concise statement thereof was directed to be sent to the judgment‑debtor by registered post. The holding was thereafter sold on the 12th of April, 1943. On the 5th of June 1943, the decree holder certified that he had received the subsequent arrears, and, as no objection was raised from any quarters, the sale was confirmed.

It is contended that the sale was not a rent sale ; that the notice of annulment was not served on all the subtenants ; that the plaintiff Badaruddin was a benamdar of Kanthi Molla, the judgment‑debtor, and was not entitled to avail of the provisions of section 167 of the Bengal Tenancy Act ; and that the sale was void, as nothing was due under the rent decree.

The learned Munsif found all these points in favour of the plaintiffs. The learned Additional Subordinate judge accepted the finding that the sale was a rent sale. But he dismissed the suit, allowing the appeals before him, on the ground that, in the circumstances of the case, the sale was held without jurisdiction. He also accepted the defence contention that Badaruddin, the auction‑purchaser, was a benamdar of the judgment‑debtor Kanthi Molla, and, as such, could not avail of the provisions of section 167 of the Bengal Tenancy Act.

These findings have been seriously criticized before me. I have given my anxious considerations to the arguments advanced. First of all, I propose to deal with the question as to whether, conceding that the Court had jurisdiction to sell the holding, Badaruddin can invoke the aid of section 167 of the Bengal Tenancy Act. One may not quite agree with the finding of the learned Additional Subordinate judge that Badaruddin was the benamdar of the judgment‑debtor Kanthi Molla, in view of the fact that Kanthi Molla allowed Badar uddin to take possession of the property without any protest, a fact which will be apparently inconsistent with Badaruddin being the benamdar. But that cannot take away the force of the facts from which that conclusion was arrived at by the learned Additional Subordinate judge, and these facts are of a highly telling nature and point unmistakably to a collusion between the judgment‑debtor, the decree‑holder and the auction‑purchaser. After the execution, case was filed, Kanthi Molla became very anxious to save the tenancy, applied to the Debt Settlement Board and got a notice issued under section 34 of the Bengal Agricultural Debtors Act. In that proceeding he met with an attack from another quarter; namely, the mother of Tainuddin, who claimed an interest in the holding. In this contingency, he paid off the amount under the decree and thereby eluded the attacks from both the quarters. His property was saved. But after this happy position was reached, he allowed the property to be sold by the Court, though her could have, by a simple intimation avoided this catastrophe. Is it to be supposed that he did so without any consideration whatsoever Can it be for a moment accepted that he, after saving the property, quietly walked out of it and allowed Badaruddin, his wife's brother, to take possession of it under a purchase from the Court It may be difficult to say that Badaruddin was a benamdar; but it is not at all difficult to see that the sale in execution of the satisfied decree was the result of a corrupt understanding between all the three parties who were concerned in the matter, namely, the decree‑holder, the judgment‑debtor and the auction‑purchaser who is no other person than his wife's brother. One may not be able to say what the exact term of the understanding was ; but that there was such a corrupt understanding, there can be no doubt.

Mr. Prafulla Chandra Nag for the appellants has referred me to Mina Kumari Bibi v. Bijoy Singha Dudhuria (44 I A 72) and Abdul Latif Kazi v. Abdul Huq Kazi (28 C W N 62), wherein it has been said that the Court's decision must not rest upon the suspicion but upon legal grounds established by legal testimony. There can be no question that the judgment must always be based on legal facts established on legal testimony but not on suspicion. But here there are solid facts leading unmistakably to the conclusion that there was collusion, and, for some consideration, which the judgment debtor received, he allowed Badaruddin to walk into the property. To my mind, though it might not be a benami, sale, it was a private sale made under the procedure of Court sale with a view perhaps to avoid the claims set up by Tainuddin's mother and to annul the incumbrance. In these circumstances, the auction.‑purchaser is not entitled to annul the incumbrances. In The Midnapur Zemindary Company, Limited v. Uma Charan Mandal and others (24 C W N 201 (P C)), Sir John Edge said

"If the sale had been the result of a corrupt agreement between the under‑tenure‑holder and the purchaser at the sale, the purchaser might no doubt lose the benefit of section 16 of the Bengal Act of 1865, and especially if the default in payment of rent had been deliberately incurred in furtherance of such an agreement."'

The sale in the present case was the result of such a corrupt understanding and cannot have the effect of a Court sale. It was a private transfer made under the procedure of a Court sale.

As to the question whether the sale was without juris diction Mr. Nag has referred me to Lakshan Chandra Naskar v. Ramdas Mondal (33 C W N 795). There the sale was held in execution of a decree which had been satisfied but the satisfaction of which was not certified under Order XXI, Rule 21, of tire Code of Civil Procedure. It is contended, on the authority of this decision, that the defendants are not entitled to attack the validity of the sale in these suits. It is undoubtedly correct that the executing Court is not bound to recognise an adjustment of the decree unless it .is certified within the time limited therefore and can execute the decree inspite of e such satisfaction, if it has not been certified. Such a sale cannot be attacked under section 47 of the Code, But whether it can be attacked in an independent suit, is a question not free from difficulty. In: the case cited by Mr. Nag the auction‑purchaser was the decree‑holder himself, and Rankin C. J., delivering the judgment, held that the validity of the sale could not be challenged in a separate suit. It is not necessary for me to go into that question in this case. It would have been necessary, if I had to decide the question with reference to the Civil P. C. only. Here I have to take into account section 34 of the Bengal Agricultural Debtors Act, which empowers the Debt Settlement Board to issue notice to stay a pending proceeding before the Civil Court in respect of the debt which is the subject‑matter of an application before the Board, and further provides that, if the Board decides that the debt does not exist, the suit or proceeding shall abate, so far as it relates to such debt The Board is authorised by section 15 of the Bengal Agricultural Debtors Act to use its best endeavours to induce the parties to arrive at an amicable settlement. In this case there was such a settlement and the bebt was paid off before the Board, and thereupon the Board dismissed the application. Unless one is pedantic or technical, one may say that there was a decision within the meaning of section 34 of the Bengal Agricultural Debtors Act that the debt was non‑existent. It is unfortunate that in giving the intimation the cause of dismissal was not stated to the Civil Court ; but that does not affect the position in law. The term of section 34 is clear. It distinctly says that the proceeding shall abate, so far as the Board decides that the debt does not exist. The abatement is not conditional on the information of the decision being given to the Civil Court ; the decision itself leads automatically to the abatement of the proceeding before the Civil Court. The executing Court, therefore, had no juris diction to hold the sale.

In the result, these appeals are dismissed with costs.

K. M. A. Appeals dismissed.

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