Decided on July 10,1961



Debabrata Mookerjee, J. - (1.) This is an application under Section 115 of the Code of Civil Procedure directed against an order made by a Munsif at Rampurhat, declining to give effect to the petitioner's objection that by reason of the provisions contained in the Banking Companies Act, the court at Rampurhat suffered from want of jurisdiction to entertain a claim preferred by the opposite party under Order 21 Rule 58 of the Code of Civil Procedure,
(2.) It appears that the petitioner bank in liquidation instituted a suit on the 6th of August, 1952 against one Krishnapada Sadhu, the husband of the opposite party and her son Dhwajahari Sadhu for recovery of a sum of Rs. 798-l-6p with interest and for other reliefs. The plaintiff's case was that the sum had become due and owing to the petitioner by the said defendants on a mutual, Open and current account with over-draft facilities which the said defendants had with the petitioner Bank. On the 3rd February, 1956, a decree was made with interests and costs by this court in its Ordinary Original Civil Jurisdiction and the same was transferred for execution to the court of the Munsif at Rampurhat. In course of execution which commenced in 1959 certain immovable properties belonging to the judgment-debtors were attached by the Bank when the opposite party, wife of the Judgment-debtor Krishnapada Sadhu preferred a claim under Order 21 Rule 58 of the Code of Civil Procedure and prayed for removal of the attachment on the ground that the properties were not liable to be attached inasmuch as they belonged to her in her own right. A Miscellaneous Judicial Case (No. 129 of 1959) was accordingly started when the petitioner preferred an objection to the entertainment of the claim by the court on several grounds one of which was that the petitioner Bank having been directed to be wound up under the provisions of the Banking Companies Act for which proceedings were still pending in this Court before the Company Judge, the claim preferred by the opposite party could not be entertained by the executing court at Rampurhat but could be investigated by the Company Judge alone on the Original Side of this Court. It was also contended on the petitioner's behalf that no leave having been obtained, for preferring the claim, the claim could not be entertained. The learned Munsif disallowed the objection and held that the claim preferred could not be considered to constitute a proceeding distinct from the proceeding in execution and as such investigation of the claim must be held to have been impliedly authorised by the order transferring the decree for execution to that Court. In this view the claim of the opposite party was proposed to be investigated, such investigation being held not barred under the provisions of Section 45-B of the Banking Companies Act, It is against this order that the present Rule has been obtained.
(3.) The petitioner Bank contends in this Rule that in view of the specific provisions contained in Sections 45-A and 45-B of the Banking Companies Act the claim case cannot proceed before the Munsif and has to be investigated by this Court in its Original Jurisdiction.;

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