Monohardas Mohanta v. Golam Rahman — 1948 DIGILAW 116 (CAL)

JUDGMENT Chatterjee, J. - This rule raises a question of considerable importance as to whether a fractional co-sharer of an agricultural holding sold in execution of a rent decree can apply for relief under S. 37A, Bengal Agricultural Debtors Act. 2. The case has a somewhat chequered history. In execution of a rent decree against two brothers, Golam Rahaman and Tayeb, their property wag sold in execution in one lot on 23rd April 1938 in Rent Execution case No. 406 of 1938 in the Court of the Munsif of Vishnupur, District Bankura. The decree-holder, Monohardas Mohanta, who in the petitioner before us, purchased the property and took possession thereof on the sale being confirmed. On 16th March 1943, Golam applied before the Vishnupur Special Debt Settlement Board under S. 37A of the said Act. In the meantime, Tayeb had died and his interest devolved on Golam. Thus the application was made by Golam in two capacities, with regard to one-half share in his personal capacity and with regard to the other half share as the heir of his deceased brother. On 20th February 1945 the Board rejected the application of Golam on the ground that he was not a debtor within the meaning of the Act as he was not an agriculturist and the application was not legally maintainable under S. 37A. There was an appeal against that order and the Appellate Officer allowed the appeal and declared Golam to be a debtor within the meaning of the Act and directed the Board to proceed with the application according to law. The decree holder moved the District Judge of Bankura in revision. By big order dated 30th October 1945, the District Judge set aside the order passed by the Appellate Officer and restored the order of the Board. Against that order of the District Judge, Golam moved this Court. On 24th January 1947 Lodge J. set aside the order of the District Judge and remanded the case to him for decision of the question as to whether Tayeb was an agriculturist and a debtor, and whether Golam as heir of Tayeb was entitled to apply under S. 37A. 3. On 14th March 1947, the learned District Judge reconsidered the matter. Under the extraordinary provisions of this statute, the District Judge when hearing applications for revision under S. 40A shall not hear the parties or any person appearing on their behalf. 3. On 14th March 1947, the learned District Judge reconsidered the matter. Under the extraordinary provisions of this statute, the District Judge when hearing applications for revision under S. 40A shall not hear the parties or any person appearing on their behalf. He is precluded from hearing any lawyers or any of the parties whose interests may be very seriously affected and under sub-s. (4) of S. 40A he shall consider such papers as may be forwarded to him by the Appellate Officer. But what is more interesting is that when the matter went back to the District Judge on remand, he heard the lawyers and at least one of the parties filed additional grounds of objection. Audi alteram partem is the cardinal principle of justice. But the Bengal legislature thought fit to override ibis salutary principle while enacting S. 40A, Bengal Agricultural Debtors Act. 4. The learned District Judge of Bankura has on remand found that Golam was entitled to relief under S. 37A in respect of one half share of the property sold in the aforesaid rent Execution case which belonged to his deceased brother Tayeb. He has also held that Golam is not entitled to relief under the said section in respect of the other half share of the said property which belong to him as he himself was not an agriculturist within the meaning of the Act. The order of the Appellate Officer was accordingly modified by the District Judge to that extent. 6. Two points have been taken by Mr. Chatterjee, on behalf of the decree-holder before us: (1) the applicant must be himself an agricultural debtor in order to obtain relief and as the District Judge on remand has re-affirmed the finding that be is not himself an agricultural debtor, such a debtor is not entitled to any relief, and (2) the property having been sold in one lot there can be no partial restoration of half share of the deceased brother of the applicant and therefore the sale cannot be set aside and the application for relief under S. 37A should be refused. 6. With regard to the first point we are of the opinion that S. 37A(1) is quite comprehensive to enable the successor-in-interest of an agricultural debtor to make an application for relief under that section, even if he himself is not such a debtor. 6. With regard to the first point we are of the opinion that S. 37A(1) is quite comprehensive to enable the successor-in-interest of an agricultural debtor to make an application for relief under that section, even if he himself is not such a debtor. On the language used in S. 37A(1) the heir, executor or administrator of a person who was on the date of the sale a debtor is entitled to apply under that section and it is immaterial whether he is himself a debtor or not. In Bholanath Pal v. The Gourangdi Zemindaries Estates Ltd., 50 C.W.N. 470 : (A.I.R. 1946 Cal. 230), this Court has held that the words "such person" in S. 37A(1)(a), refer to the person whose property has been sold, whether he be the applicant himself or his predecessor-in-interest. In Goppi Ballav Mondal Vs. Aswini Kumar Mondal and Others, AIR 1948 Cal 31 , this Court has observed that one of several joint judgment-debtors is entitled to make an application under S. 37A, whatever be the decree and whenever the decree may have been passed. 7. We now take up the second point urged before us. What is the position when the successor-in-interest of a fractional co-sharer of an item of property which was sold in execution of a rent decree applies for relief under S. 37A? The language of S. 37A(1) , requires careful analysis. When any immovable property of any person has been sold then such person or his heir, executor or administrator may apply for relief under that section provided certain conditions are fulfilled. The first condition is the status of the person whose property has been sold. Under clause (a) he must be on the date of the sale a debtor under the Act. Secondly the sale must have taken place, (i) before appointment of a Chairman and the members of a Local Debt Settlement Board, or (i) in spite of the issue of the notice under S. 34 of the Act or (iii) in case of joint debt for arrears of rent before the commencement of the operation of the Bengal Agricultural Debtors (Amendment) Act, 1940. Thirdly, under cl. Thirdly, under cl. (c) the property sold must be in the possession of the decree-holder on or after 20th December 1939 or it must have been alienated in some way except in certain protected forms of transfer mentioned in the four sub clauses of cl. (c). Non fulfilment of any of these prescribed conditions will put the applicant out of Court. The language of cl. (c) of S. 37A(1) shows that one of several judgment debtors can apply, and if he fulfils the other conditions prescribed in S. 37A(1) he is entitled to relief. One argument is that the property sold must mean the whole of the property sold. This contention cannot be correct in view of the judgment of the Division Bench in the case of the Madaripur Commercial Bank Ltd. Vs. Lal Mohan Saha and Others, AIR 1947 Cal 127 . In that case out of 15 items of properties sold in different lots 13 were purchased by the decree-holder and two lots were purchased by a stranger. It was held that the sale could be set aside in respect of 13 items of properties which were purchased by the decree-holder and which were in bid possession. Chakravartti J. delivered the judgment in that case and Biswas J. agreed with the same. Chakravartti J. took the view that where there was a sale of properties in separate lots, there were in fact so many separate sales and there was no legal bar to the setting aside of one or some of them. According to him even if this be not permissible under the general law S. 37A itself creates a statutory authority for a partial setting aside of sale in cases covered by it. That does not mean that there can be splitting up of one item of property sold. It means that a sale can be set aside under S. 37A partially in respect of those properties which were purchased by and were in possession of the decree-holder and when possession thereof can be restored to the applicant. 8. Reference has been made to the judgment of another Division Bench in the case of Ahamad Mea Vs. Gunu Mea, AIR 1948 Cal 105 . In that case one item of property which covered an area of 1.34 acres was sold in one lot and was purchased by the decree-holder, who obtained possession through Court. 8. Reference has been made to the judgment of another Division Bench in the case of Ahamad Mea Vs. Gunu Mea, AIR 1948 Cal 105 . In that case one item of property which covered an area of 1.34 acres was sold in one lot and was purchased by the decree-holder, who obtained possession through Court. Thereafter the decree-holder leased a portion viz., 15 acres of the property purchased by him to the judgment-debtor and retained the remaining portion, i.e., 1.19 acres in his possession. Edgley and Clough JJ. held that no relief could be given under S. 37A in that case. Under S. 37A(8) the debtor may present a copy of the award to the Civil Court or the Certificate Officer and that such Court or Certificate Officer shall thereupon direct the sale to be set aside. Edgley J. held that the expression "the sale" in sub-s. (8) mean the Sale of the property as a whole or the sale of a particular lot under which a specific item of the property was sold to some particular person. In the case before him the decree holder was not actually in possession of any item of the immovable property to which S. 37A could apply. He was merely in possession of a fraction of the property which he purchased at the auction sale and therefore, the debtor was not entitled to relief as he could not get possession of the whole of the property amounting to 1.34 acres. His alternative prayer to be put into possession of that portion of the property which was still in the possession of the decree-holder was also refused. 9. On the strength of these judgments the argument is put forward that no relief can be given in this case as the applicant cannot be put in possession of anything but an undivided half share of the property sold. In our view, this argument is based on a misconception of the legal position. Under sub-s. (8) of S. 37A when a copy of the award is forwarded to the Civil Court there is a mandatory provision for the setting aside of the sale. The Civil Court shall order the sale to be set aside. In our view, this argument is based on a misconception of the legal position. Under sub-s. (8) of S. 37A when a copy of the award is forwarded to the Civil Court there is a mandatory provision for the setting aside of the sale. The Civil Court shall order the sale to be set aside. The scheme of S. 37A is that the applicant will have to take upon himself the entire burden of the debt although he may be one of the judgment-debtors or a fractional co-sharer. Under sub-s. (5) of S. 37A, the Board is enjoined to make an award whereby he shall have to pay annually in cash to the decree-holder one half of the annual value of the average annual gross receipts of the property until the debt is extinguished or until 20 years have expired from the date of the award. The scheme of this statute indicates that the debt is to be liquidated out of the usufruct of the property. The property that will be restored is not the undivided half share of Tayeb, but the entire property that was sold, provided it is in the possession of the decree-holder and was not alienated before the date mentioned in cl. (c), and all persons excepting the under-raiyats will be ejected therefrom. Therefore, there is no question of restoration of any half share in any individual item of property. If the restoration of the entire property is not possible, then according to the judgment of Edgley J. no relief could be granted under S. 37A and the rule would have been made absolute. In our opinion, S. 37(8) does not compel the Civil Court on the setting aside of the entire sale to order restoration of only a fraction or a share of the property sold. The language of the statute is most unsatisfactory. The intention of the Legislature should not be defeated in the process of construction of a statute unless its language compels it. That construction should be put which will advance the remedy which the Legislature wanted to afford by the particular statute and which would avoid consequences both inconvenient and unjust. The language of the statute is most unsatisfactory. The intention of the Legislature should not be defeated in the process of construction of a statute unless its language compels it. That construction should be put which will advance the remedy which the Legislature wanted to afford by the particular statute and which would avoid consequences both inconvenient and unjust. The scheme of the Act in our opinion indicates that when a fractional co-sharer takes upon himself the entire burden of the judgment-debt and there is the mandatory provision for automatic setting aside of the sale, restoration of the property must not be partial. The learned District Judge was wrong in putting a limitation when he said that Golam is entitled to relief under S. 37A in respect of one-half share of the property sold but he is not entitled to relief in respect of the other half share of the same property which belonged to himself This view will lead to great injustice and will inflict a burden without giving the benefit to which he is entitled. There is no question of partial possession of the judgment-debtor along with the decree-holder in respect of the property sold. The entire sale should be set aside provided other conditions of S. 37A(1) are complied with and in that event the entire property sold must be restored to the possession of the applicant. 10. A point was raised by the opposite party No. 2 that he has taken a lease of the property in April 1939. He wants to avail of the bar imposed by S. 37A(1)(c) . If this point is persisted in, the point will have to be decided hereafter. Subject to the modifications indicated above, the Rule will be discharged. There will be no order as to costs. G.N. Das, J. 11. I agree. The right to the reliefs given by the Board and the Civil Court respectively under sub-ss. (5) and (8) of S. 37A, Bengal Agricultural Debtors Act, is only limited by the three conditions mentioned in Sub-s. (1). As these conditions have been fulfilled in the facts of the present case, the right to the reliefs given by the section should have full operation.