NAGENDRA LAL PAL CHOUDHURY Vs. HEMANTA KUMAR MUKHERJEE

JUDGEMENT

(1.) This is an appeal from an order of the District Judge of Faridpur passed on 23rd September 1936, wherein he declared that an auction sale of certain immovable property held on 20 September 1935, was null and void. The learned Judge was sitting in Insolvency. The history of the matter is this : the decree, holder Nagendra Lal Pal Chowdhury on 8 March 1934, obtained a money decree against the judgment-debtors for Rupees 883 and costs. Execution proceedings were started in the first Munsif's Court at Chikandi in the district of Faridpur. On 17 May 1935 a notice was issued upon the judgment-debtor under Order 21, Rule 66, Civil P. C, fixing 2 July, 1935 as the date for hearing objections to the proposed proclamation of sale. On 2 July, 1935 proclamation of sale was drawn up, the date of sale being fixed for 12 August 1935. On 10 August 1935 the two judgment-debtors filed an insolvency petition in the Court of the District Judge of Faridpur. On 12 August, that is, the date fixed by the executing Court for the sale of the judgment-debtors property, the judgment- debtors in the executing Court at Chikandi prayed for time to bring a stay order from the District Judge's Court, or the order sheet of the insolvency case. As a result, the Munsif in the executing Court adjourned the same for ten days, until 22 August, 1935. On 15 August in the Insolvency Court at Faridpur, the insolvency petition of the two judgment- debtors was registered. On 22 August, 1935 in the executing Court at Chikandi, the judgment-debtors filed a certified copy of the order sheet in the insolvency case and prayed for time. The Munsif allowed the prayer recording that " on the judgment-debtors prayer the case is adjourned to 6 September 1935 next for sale at 12 noon." On 27 August the judgment-debtors, the petitioners in the insolvency case, prayed for time to deposit costs, and time was granted until 5 September, the insolvency Judge saying that no further time would be allowed. On 5 September in the Insolvency Court at Faridpur a petition was presented by the petitioners stating that the decree-holder in the money execution case in the executing Court at Chikandi had attached properties of the petitioners, and prayed for stay of further proceedings in the said execution. The Court ordered as follows: As the order of adjudication has not yet been made this Court has no jurisdiction to entertain this petition. It is therefore rejected.

(2.) On 6 September in the executing Court at Chikandi the judgment-debtors prayed for time to bring a stay order from the Appellate Court. The order was made: That sale is adjourned to 20 September 1935 next for sale at 12 noon without fresh proclamation of sale

(3.) On 20 September in the executing Court at Chikandi the judgment, debtors asked for further time. The Munsif recorded: He (they) has not obtained any stay order from the Judge's Court. There is nothing to show that any receiver has been appointed. I do not think that the applicants prayer is bona fide. Already three adjournments have been granted to the applicants. Petition is rejected.