An auction sale held in contravention of Section 35 of the BADA is a nullity and does not require to be set aside.

This Second Appeal is at the instance of the plaintiffs. Their suit for declaration of tile, confirmation of possession and for permanent injection was dismissed by the learned Munsif, 2nd Court, krishnagar. The learned Subordinate Judge, Nadia also dismissed the appeal confirming the findings of the learned Munsif. Thereafter, this second appeal was preferred.

2. The predecessor-in-interest of the plaintiffs held a reiyati jama comprising 14.22 acres of land in Khatian No. 831 Mouza Dhananjoypur under Nakashipara police station under Jyotish Chandra Pal Choudhury and other at an annual rent of Rs. 19-7 annas. The said J.C. Pal Choudhury obtained a decree for arrear of rent against the plaintiffs processors-in-interest in Rent Suit No. 718 of 1937. Thereafter, the said decree-holder put up the said decree in to execution in Rent Execution Case No. 262 of 1940. While the said execution case was pending the present plaintiff made an application to Dhananjoypur Debt Settlement Board for settlement of his debt under the provisions of Bengal Agricultural Debtor’s Act, 1936. The Debt Settlement Board had given notice thereof to the executing court and the further proceedings in Rent Execution Case No. 262 of 1940 had remain favour of the plaintiff. In the meantime, the Executing court had issued notice upon the judgment-debtors to how cause why the stay of the said execution case shall not be vacated and on February 18, 1950 the said stay was vacated. On October 10, 1950, the suit property was auction sold in Rent Execution Case No. 262 of 1940. The present plaintiff, had filed an application under S.47 read with Order 21 rule 90 of the Code of Civil Procedure for setting aside the said sale held on October 10, 1950. The learned Munsif, 2nd Court at Krishnagar by his order, dated May 31, 1951 dismissed the said application on contest.

3. Thereafter, on September 10, 1955 the present plaintiffs instituted a title suit inter alia for a declaration of their title and for further declaration that the auction sale of the suit property in Rent Execution Case no. 262 of 1940 was illegal, fraudulent and void. They also prayed for confirmation of possession and for permanent injunction.

4. Both the trial court and the lower appellate court have held that the plaintiff Misc. case under S.47 of the Cod of Civil Procedure having been dismissed on May 31, 1951 the present suit was barred under S.47 of the Code and the question involved was concluded by principles of res judicata. The trial court and also the lower appellate court did not determine the remaining issues in the suit. The principal question in this Second Appeal is whether the suit in question was maintainable in law, Section 33 of the Bengal Agricultural Debtor’s Act 1936 lays down that except as provided in the said Act

"No Civil or Revenue Court shall entertain a suit application or proceeding against the debtor in respect of

(a) any debt included in application under S. 8 or in a statement under sub-s.(1) of S. 13, proceedings in connection with which arc pending before a Board or an Appellate officer or a District Judge or an additional District Judge,' or .

(b) any debt for which any amount is payable under aft award except in accordance with the provisions of sub-s (5) of S. 29"

5. The expression 'application' in S.33 of the Bengal Agricultural Debtor's Act is wide enough to include execution proceedings. The aforesaid execution proceedings had remained prayed under S. 34 of the laid Act on receipt of a notice that the plaintiffs had applied for settlement of their debts to Dhananjoypur Debt Settlement Board until the said stay order was purported to be vacated.

6. The defendant neither alleged nor proved that the award dated January 8, 1949 of the Debt Settlement Board in favour of the plaintiffs laid become inexcusable before Civil Court sold the suit property in auction laid on October 10, 1950. Thus, there was no evidence before the court that the certificate offic