Chakravartti, J - (1.)This Rule raises two questions under the Bengal Agricultural Debtors Act, both of which are of some importance. They arise out of the following facts.
(2.)On 29.9.1938, the petitioner and his co-sharers obtained a rent decree against the opposite parties and, in execution of that decree, the holding was sold on 14-2-1939, when it was purchased by the petitioner. Ho took delivery of possession in due course and claims to have settled the land with a third party. On 14-1-1943, only some of the opposite parties made an, application Under Section 87-A, Bengal Agricultural Debtors Act before the Special Debt Settlement Board at Allipore and of them, again, some dropped off subsequently. The petitioner resisted the application and one of the grounds upon which he did so was that no application Under Section 87-A was maintainable at the instance of some only of several joint debtors. The Board, being in doubt as to whether the application could be entertained, made a reference to the Special Appellate Officer Under Section 42, of the Act, By an order, elated 5- 7-19-13, the Special Appellate Officer answered the question in the negative and directed that his opinion might be communicated to the Board. When, however, the application came up before the Board on 30-9-1943, the opinion of The Special Appellate Officer had not yet reached it, but meanwhile, the Government had issued a circular, being Memo. No. 1159 (25) T.B. 1, dated 11-8-1943, in which it was stated that an application Under Section 37-A might be made by any or all of the joint judgment-debtors. The applicants Under Section 87-A drew the attention of the Board to this circular and thereupon the Board recorded an order to the effect that the opinion of the Special Appellate Officer was no longer required. On the next date of hearing, 4-11-1943, the petitioner produced a copy of the order of the Special Appellate Officer but the Board held that in view of the Government circular, it was not necessary to refer to it and proceeded to make an award. The applicants Under Section 37-A however, moved the Special Appellate Officer for a review of his order, but their application was dismissed on 11-12-1943. The petitioner, on his part, appealed against the award to the ordinary Appelate Officer and then moved the District Judge under Section 40-A of the Act, but was unable to obtain any relief. The Ordinary Appellate Officer held that the Government circular would prevail over the opinion of the Special Appellate Officer and the award, being in acordance with the circular, was valid. The Additional District Judge, while expressing the same view, added that the Government circular correctly interpreted Section 37-A. Thereupon the present Rule was obtained.
(3.)In support of the Rule, Mr. Gupta contended that as regards both the questions, the view taken by the learned Additional District Judge was erroneous. He ought to have held that the Board was bound by the opinion of the Special Appellate Officer and, in any event, should have held that an application by only some of several joint judgment-debtors was not maintainable Under Section 37-A.