P L D 1952 Dacca 455 (PLP)

IBRAHIM, J.

‑ This appeal is an outcome of a proceeding started on the objection of the respondent to the granting of relief to the appellant under section 37‑A, clause 8 of the Bengal Agricultural Debtors Act. In execution of a mortgage decree obtained against the appellant his properties under mortgage were purchased by the respondent at a sale held on the 7th August 1935. The sale was confirmed on the 19th September of that year. In 1946 the appellant obtained an award from the Debt Settlement Board under section 37‑A, clause 5, and presented the same to the executing Court for relief under clause 8 of the section. The respondent took an objection on the ground that the sale having been held on the 7th August 1935, the award of the Board was passed without jurisdiction and that it being as such a nullity the appellant was not entitled on the strength of the award to any relief. The objection was overruled by the executing Court. On appeal the learned Subordinate judge taking the contrary view reversed decision of the learned Munsif and the present second appeal is directed against this order of the learned Subordinate Judge. In the first place Mr. Bhattacharjee appearing on behalf of the appellant contends that the Civil Court has no power to go behind the award and to refuse to give relief. No decided case directly bearing on the point has been placed before me. On behalf of the respondent Mr. De has relied on the case of Gora Chand Haldar and another v. Prafulla Kumar Roy and others 29 C W N 948, where Walmsley, J. delivering the judgment of the Full Bench said :‑ Where the decree presented for execution was made by a Court which apparently had no jurisdiction, whether pecuniary or territorial or in respect of the judgment= debtors person, to make the decree, the executing Court is entitled to refuse to execute it on the ground that it was made without jurisdiction. Within these narrow limits, the executing Court is authorised a question the validity the decree. The contention of Mr. De is that the same principle would hold good in respect of an award passed by the Debt Settlement Board, and the executing Court is entitled to refuse to give effect to it, on the ground that the Board had no jurisdiction to entertain the application on which it is based. This decision does not seem to me to have any application. The Civil Court mentioned in section 37A no doubt happens to be the executing Court but its powers in respect of an award presented to it are subject to the provisions thereof. This section precludes the idea of the Civil Court being vested with any power to question the validity of the award on the ground that the Board had no jurisdiction to entertain the application on which it is based. Subsection (2) gives the Board absolute jurisdiction to decide whether the application is or is not maintainable. It provides that "the Board shall first determine whether the application fulfils the conditions specified in that subsection meaning sub section (1) and whether it can be entertained". If the Board commits any mistake the remedy lies in the machinery set up by the Bengal Agricultural Debtors' Act. Subsection (8) does riot open any scope for reagitating this question before the Civil Court. It makes abundantly clear that it does not con template any dispute or decision. There is no provision in it, for the hearing of any objection ; nor does it, even, require any notice on the decree‑holder as a condition precedent to the setting aside of the sale. The section applies not only to sales held by the Civil Court but also to sales held by the Certificate Officer, and the Civil Court cannot have greater power under this section than the Certificate Officer. It is difficult to hold that the Certificate Officer is vested with power to question the validity of the award. If the Civil Court had any such power, an award, after it has passed through the Tribunals set up by the Bengal Agricultural Debtors Act, could be put to the test of another course of litigation in the Civil Court up to the highest Tribunal before the fruits of it could be available to the debtor. There is nothing in the section of the Act which warrants the view that the Legislature intended to provide for the possibility of such a double course of litigation. The section is mandatory and the Civil Court or the Certificate Officer as the case may be, cannot refuse to set aside the sale on the ground that the Board had no jurisdiction to entertain the application on which the award is based. I do not think that the application was incompetent. Section 37A applies if the property was "sold after the 12th August 1935". The sale in this case took place on the 7th August, but was confirmed on the 19th September, 1935. The application is competent if the words "sold after the 12th August 1935", refer to an absolute sale. This brings up the question as to what the meaning of these words is. The Bengal Agricultural Debtors (Amendment) Act, 1942 which introduced section 37A came in the wake of the original Act of 1936, and the amending Act of 1940. The Bill, which became the Act of 1936, was first published in the Calcutta Gazette on the 12th August, 1935. The Act came into force on the 3rd July 1936, in majority of the district. and later on, in the other districts. Benefit of the Act could not, however, be reaped by the people until the Provincial Government appointed the Chairman and members of the Board under section 3 (2). During the operation of this Act, it was held that a notice issued under section 34 between the sale and its confirmation was not binding on the Civil Court inasmuch as the sale though not confirmed wiped out the debt. This view was not approved by the Legislature and the Act of 1940 made it clear by the explanation to section 31, that "for purposes of this section an execution proceeding for the sale of any property shall be deemed to be pending arid the debt in respect of which the sale takes place shall be deemed to exist until such sale becomes absolute". Of tire, other changes, introduced by this Act one was with regard to the joint debtor for arrear rent. This Act for the first time enabled him to apply individually for the settlement of the entire rent dues of the holding, if any of his co‑sharer was unwilling to join in the application. Section 37A is designed to give relief to three classes of debtors, viz., (1). those whose properties were sold after (lie publication of the Bill on the 12th August 1935, and before: the appointment of members and Chairman of the Board under section 3 (2) ; (2) those whose properties were sold notwithstanding the issue of notice under section 34 ; (3 ) joint debtors for arrear rent, whose properties were sold before the commencement of the Act of 1940. lersorrs in group two are mentioned in subsection 1 (b) (ii) of sec tion 37A. This subsection seeks to give relief in respect of sales which were held before but confirmed after the issue of notice under section 34, read with reference to clause (b) (ii), the word relief "sold" in subsection 1, therefore, implied an absolute sale, So also, as regards clause (b) (iii) which seeks to give in respect of rent sales. Rent sale takes effect from the date of confirmation : Section 159 (2), Bengal Tenancy Act, A property cannot be said to have been "sold" in execution of a rent decree, until the sale has become absolute. It is clear from subsection 1 (c), that a mere sale does not give any right to apply. An application lies only if the sale has been followed by delivery of possession. There can be no delivery of possession, until the sale has become absolute. The word "sold" in subsection 1 cannot have a different meaning with reference to clause (b) (i). The object of this clause is to give relief to those who could have averted the sale of their property if the Bengal Agricultural Debtors Act had come into force on the day following the 12th August 1935, when the Bill was first published and if an appointment under section 3 (2) had been simultaneously made, If this had happened, a sale field before but pending confirmation after the 12th August 1935, could obviously have been prevented by notice under section 34 from becom ing final. In my opinion the words "sold after the 12th gust 1935 in subsection (1), implies an absolute sale and the section is applicable to sales held before but confirmed after the 12th August 1935. I accordingly allow this appeal. The order passed by the learned Subordinate judge is set aside ; of the first Court is restored. The parties will bear costs. Leave to appeal is granted under clause 15 of the Letters A.H. Appeal allowed.