LexNALINI DASI ALIAS NABANALINI DASSI versus KRITISH CHANDRA HAZRA AND OTHERS
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NALINI DASI ALIAS NABANALINI DASSI
v.
KRITISH CHANDRA HAZRA AND OTHERS
September 23, 1965
[P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO,
M. H!DAYATULLAH, J. c. SHAH AND s. M. SJKRI, JJ.]
Bengal Agriculturists Debtors Act (7 of 1936), s, 37A-Property of
debtor in the hands of bona fide purchaser for valu..-IJ can be recovered
by debtor.
The mortgagee of the property in dispute had obtained a mortgage
decree and in execution purchased it. In 1942, he sold the property to
the appellant.
After the introduction of s. 37-A into the Bengal Agricul-
tural Debtors Act, 1936, by the Amendment Act of 1942, the respondents
who were the owners of th·o property, applied under the section, lo the
Debt Settlement Board, for getting back possession of the property. They
succeeded in '1heir application and obtained possession, but their posses-
sion was disturbed by the appellant. Therefore, the respondent• field the
suit to remove the· cloud on their title and to obtain possession in case
it was found that they were not in possession. The suit was decreed by
the trial court, but the appellate court allowed the appeal.
The High
Court, on further appeal, restored the decree of the trial court.
In his appeal to thio Court, the
appellant
contended
that,
(i)
the Board had no jurisdiction in the matter as the decree in the mortgage
suit was for more than Rs. 5,000, and (ii) section 37-A did not apply to
a bona fide purchaser for value from the anction purchaser.
HELD : (i) The contention as to jurisdiction on the ground of value
should be rejected as the point was not taken in the trial court, for, if
it had been raised, the respondents would have been able to show that,
even if the debt was over Rs. 5,000, the previous sanction of the Collector
had been taken by the Board before it dealt with the matter as permitted
by the proviso to r. 144 framed under the Act. [932 FJ
(ii) Reading the wide language used in s. 37A(8) with s. 37A(1)(c:),
it is clear ~hat once the sale is set aside, even alienees from the decree-
holder would be liable to be ejected and would be covered by the words
"any person" used in the latter part of s. 37A(8), unless they were afienecs
of the four kinds mentioned ins. 37A(1){c). [936 El
When an award in favour of the debtor was made under s. 38A(S)
and where a copy of the award was presented to the Civil Court or Certi·
-0
ficate-officer at whose order the property was sold, s. 37-A(S) imperatively
enjoins on the Civil Court or the Certificate Officer to set aside the sale.
It follows that where a sale is set aside, whoever may have purchased the
property in the sale-whether the decree-holder himself or somebody else
-will have to give up possession, for the right of the person who had pur-
chased the property, to remain in possession, would only exist so long as
the sale subsists.
On the same reasoning, if the auction-purchaser, whc-
H
ther he be the decree-holder or somebody else. has parted with the pro-
perty subsequently in favour of any person that person would be equally
liable to ejectment, for his right to remain in possession only flows from
the sale which i9' ordered to be set aside.
Further, the
word "decree
holder" has been given an inclusive definition and so, it cannot be ftaid
l.BSDp, C.l./65--16
930
SUPREME
COURT
REPORTS
[1966] l S.C.R.
that it is confined only to the
decrce-h0Ider-auctio~-purch:1s~r.
A11:10,
ooder s. 37-A{l){c) only four kinds of lransfers, including b:ma (tde
transfers for valuable considera1ion (excepting a morigage) before 2Uih
December 1939, arc excep;ed, and so an application could be n1adc under
the section even whe:·e there 1,1.ras an alienation of any kind by the de;:ree-
holder, so long as 1he aliena1ion was afler 201h December 1939.
There-
fore, rhere is no doub1 thot s. 37A(8) inlends that rhe sale should be
ICI aside whoever may be auction-purchaser, and it also intends that after
oclling aside the sale the properly should be delivered back to the deolor,
whoever may be in possessioo thereof al lhe time of the delivery liack,
except in
1he case of an under-riyal under certain conditions. 1934 D-H;
935 A-B, D; 936 A-CJ
CIVIL APPELLATE JURISDICTION:
Civil Appeal No. 901 of
1963.
Appeal by special leave from the judgment and decree dated
December 22, 1959, of the Calcutta High Court in Appeal from
Appellate Decree No. I 039 of 1954.
Niren De,
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