Back
1937 Supreme(Cal) 358
CALCUTTA HIGH COURT
Jagabandhu, Gobinda Chandra, Probhat Chandra Roy Choudhuri Firm - Appellant
Versus
Bhusai Bepari & Ors. - Respondent
Decided On : 08-11-1937
The court emphasized the importance of adhering to the proper legal procedures in the execution of decrees and highlighted the limited discretion of the learned Subordinate Judge in the given situation.
Headnote:
Rule - Execution of Decree - The court made the rule absolute against the order of the learned Subordinate Judge staying further proceedings in execution of a decree. The court found that the order passed by the learned Subordinate Judge was without jurisdiction and it cannot be supported. The only course open to the learned Judge was to confirm the sale on failure to deposit the money within six months.
Fact of the Case:
The judgment-debtors' properties were sold in pursuance of a money decree. An application was filed to have the sale set aside, and a stay was granted by the learned Subordinate Judge based on the matter being referred to the Debt Settlement Board.
Finding of the Court:
The court found that the order passed by the learned Subordinate Judge was without jurisdiction and it cannot be supported. The only course open to the learned Judge was to confirm the sale on failure to deposit the money within six months.
Issues: The issues revolved around the jurisdiction of the learned Subordinate Judge to grant a stay in the execution of the decree and the proper course of action in the given circumstances.
Ratio Decidendi: The court relied on legal provisions and previous decisions to determine that the order passed by the learned Subordinate Judge was without jurisdiction and that the only course open to him was to confirm the sale on failure to deposit the money within six months.
Final Decision: The rule was made absolute, and the order complained of was set aside.
ORDER
1. This rule must be made ab-solute. The rule was issued against the order of the learned Subordinate Judge staying further proceedings in execution of a decree. The facts are that the judgment-debtors' properties were sold in pursuance of a money decree. Subsequently an application under Order 21, Rule 90, Civil P.C., was filed by the opposite party to have the sale set aside. It was then agreed between the parties that if the amount mentioned in the application due under the decree, was paid within a specified period, i.e. within six months from the date, the sale of the property would be set aside, other-wise the sale would be confirmed. No; such payment was made, but when the case came up for final disposal an application was made stating that the matter has been referred to the Debt Settlement Board, Raipura and on this ground the stay was applied for and granted by the learned Subordinate Judge. In view of the decisions reported in Nrishingha Charan Nandi Choudhury Vs. Kedar Nath Chaudury, AIR 1937 Cal 713 and Monindra Mohon Roy v. Bipin Behari 41 CWN 1366 the order passed by the learned Subordinate Judge was without jurisdiction and it cannot be supported.
2. There is a further consideration that in view of the order passed by the learned Judge himself on 5th December 1936, the only course open to him was to confirm the sale on failure to deposit the money within six months. This rule is accordingly made absolute and the order complained of is set aside.
