Henderson, J.@mdashThese appeals are by the decree-holder and raise a question whether certain sales held in execution of rent decrees were nullities. There is no dispute about the facts. The sales were held after an application in connection with the decretal dues had been filed before a Debt Settlement Board. Two days later a notice came under sec. 34 of the Act. Therefore it could obviously be not argued that the provisions of that section had been defied. The Respondent therefore fell hack upon sec. 35 which prohibited execution.
2. In view of the provisions of Art. 166 of the Indian Limitation Act the proper order for the Munsif to make was a declaration to the effect that the interest of the applicants was not affected by the sale. As this might merely create future trouble, this point was not pressed.
3. The sales were clearly held in defiance of sec. 35 of the Act and I entirely agree with the view taken in the Courts below that a sale held in defiance of the provisions of the Act is a nullity.
4. In support of the appeal Mr. Guha contended that, inasmuch as the notice had not arrived, the sales are saved. This argument is supported by the decision of Edgley, J., in the case of Sreedhar Chandra Hazra v. Sudhindra Nath Maity 47 C.W.N. 506 (1943). The learned Judge did not deal with the provisions of sec. 35 at all and the decision is inconsistent with his own earlier decision in the case of Sheikh Tamizali alias Tamizali v. Md. Nasarali Bhuiya 72 C.L.J. 66 (1940). In these circumstances I prefer to follow the view taken by myself in the case of The Kishoreganj Co-Operative Bank, Ltd. v. Rukmini Kanta Bhattacharya 48 C.W.N. 359 (1944).
5. In addition to that Mr. Guha relied upon some words used in the judgment of my Lord, the Chief Justice in the case of Sm. Fatema Khatun Sahebani v. Manindra Chandra Chakravarty 44 C.W.N. 1125 (1940). He was dealing with a case in which the Munsif insisted on going on with the sale although he was informed that that matter was pending before the Board. The observations therefore cannot possibly be given the wide interpretation which is sometime sought to be placed upon them.
6. The appeals are accordingly dismissed and I direct that the execution cases be restored to the file and the Munsif will take steps to bring the holdings to sale again. I make no order as to costs. Leave to appeal under clause 15 of the Letters Patent is refused.
