PRAN KRISHNA NASKAR Vs. BHAGAWAN CHANDRA MIDDEY

JUDGEMENT

(1.) The main question raised in this appeal is whether a sale held in execution of a decree obtained by the appellant or an order of transfer made by the appellate officer under the provisions of Section 39, Bengal Agricultural Debtors Act is a nullity. The following facts require to be noted in order to under, stand the point in dispute. They are set out in chronological order. The execution case was stayed on receipt of a notice under Section 34 of the Act on 5 February 1940. The judgment-debtor applied for a transfer to the appellate officer on 17 December 1940. The board dismissed the case on 19 December 1940. On receipt of information from the board to this effect, the Munsif vacated his stay order on 17th January 1941 and directed that execution will proceed. The property was attached on 35th January 1941. The appellate officer made an ex parte order of transfer to the Ramchandrapur Board on 13 February 1941. The sale was held on 7 March 1941. Before dealing with the merits of the case I will refer to the question of limitation. The Munsif set aside the sale. In view of the provisions of Art. 166, Limitation Act, on the finding that there was no fraud, the application to set aside the sale was clearly barred by limitation. The proper order on the finding that the sale was a nullity was to make a declaration that the interest of the respondent was not affected by the sale. As this would make the position of the decree-holder worse the point of limitation was not pressed by Mr. Sarkar.

(2.) On the merits the Munsif solved the problem by saying that by the order of transfer the appellate officer set aside the order of the board dismissing the case. No doubt the appellate officer might have made such an order on a proper application being made. He, however, was not asked to do so and did not do so. In my judgment the order of transfer is nothing more than an order of transfer. The District Judge dismissed the appeal of the appellant summarily holding that the order of the board was a nullity in view of the application for transfer pending before the appellate officer. There was no order of the appellate officer staying further proceedings and I have not been able to find any provision in the Act to suggest that a mere application for transfer takes effect as an automatic stop for staying proceedings before the Board. No attempt was made to support the reason given by the learned Judge.

(3.) The position is that as a result of the order of transfer the case was pending before the Ramchandrapur Board at the time when the sale was held. Section 34 has no application to the facts of the case. Mr. Mitter relied upon Section 35. If the sale was held in contravention of the terms of that section it was undoubtedly a nullity. Clearly it was so held, unless it can be said that the order of transfer to the Ramchandrapur Board was itself a nullity. In my judgment it was. Although the section is not so carefully drafted, as Section 24, Civil P. C, it seems to me that the power of transfer must) be confined to pending cases. It is quite meaningless to transfer a case which has already been disposed of. The appellate officer made an order of transfer when there was nothing to transfer. The order had no legal effect of any sort. The result is that the appeal must be allowed. The orders of the Courts below are set aside. The application filed by the respondent under Section 47, Civil P. C., is dismissed with costs in all Courts -- hearing fee in this Court two gold mohurs. No order is necessary on the application.