NILIMA RANI NANDA Vs. RAJESWAR PATHARI

JUDGEMENT

(1.) -Defendant is the petitioner. She filed the present misc. case under section 47 read with section 151 of the Code of Civil Procedure Her case is that the plaintiff-opposite party instituted the Title Suit No. 126 of 1974 against her for declaration that the kobala regarding the disputed property dated 4th September. 1968, and the deed of agreement no. 12426 executed between them constituted a loan transaction within the meaning of the provisions of Bengal Money Lender's Act The suit was decreed ex-parte against her. She filed an application under Order 9 Rule 13 of the Code. But it was dismissed for default. She filed an application under section 151 of the Code and that too was dismissed. Her allegation is that when the aforesaid proceedings were pending, the opposite party filed an application under section 4 of the West Bengal Restoration of Alienated Land Act, 1973. The Special Officer, Minakha, allowed that prayer and granted ten equal instalments of Rs. 220.00 each. Against that order, the opposite party preferred an appeal, which was dismissed on the 13th April, 1978 by the competent authority. In such circumstances, the petitioner contended that the ex-parte decree passed in Title. Suit No. 126 of 1974 was inexecutable in law and not binding on her. The prayer was opposed by the opposite party. The defence was that the Special Officer acted beyond his limits and as such, he had no power to pass such illegal order, which was not binding on him.

(2.) The learned Munsif considered the arguments advanced by the parties and stated that he had jurisdiction to consider the matter. The Special Officer acted illegally in allowing such prayer. Hence, accepting the opposite party's objection, he held that the order passed by the Special Officer, Minakha, was without jurisdiction and the same was not binding on the opposite party. The misc. case was, therefore, dismissed and the order passed by the Special Officer set aside. He stated that, in that view of the matter, the execution case initiated by the opposite party could be proceeded with. He passed such direction. That gave rise to the present revisional application.

(3.) It has been contended on behalf of the petitioner that the opposite party moved two tribunals. The prayer under section 4 of the West Bengal Restoration of Alienated Land Act was filed by the opposite party with regard to the disputed transaction. The title suit was filed on the 16th April, 1974 and the ex-parte decree was passed on the 4th Sept., 1974. The prayer under section 4 of the West Bengal Act was allowed by the Special Officer on the 31st Dec., 1975. Sec. 3 of the Act has overriding effect and hence, the Special Officer has exclusive jurisdiction to deal with the matter. The learned Munsif was, therefore, not competent to entertain the Title Suit No. 126 of 1974. Reference has been made to the case of Nagubai Vs. Shama Rao in A.I.R. 1956 S.C. 593 at pages 601 and 602 to show that a person cannot approbate or reprobate at the same time. The order passed by the learned Munsif is, therefore, without jurisdiction.