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Firm Thakar Das, Madan Mohan, Ahuja Vs. Mt. Koshaliya Devi and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana
Decided On
Reported inAIR1949P& H27
AppellantFirm Thakar Das, Madan Mohan, Ahuja
RespondentMt. Koshaliya Devi and anr.
Cases ReferredSahib Dim Mal v. Mohra Mal A.I.R.
Excerpt:
.....well recognized legal principles, held that such legal representatives owed the debt or were liable therefor, its decision could not be regarded as final and not liable to be called into question in the civil court. 10. for the above reasons, i am of the opinion that the application made by the respondents to the debt conciliation board of ferozepore being not an application permitted of contemplated by section 9, punjab relief of indebtedness act, section 25 of the aforesaid act was clearly inapplicable and the order made by the executing court suspending the proceedings for the execution of the decree under that section was not justified......to present a petition under section 9, punjab relief of indebtedness act, for settlement of the debt in question and that the board had no jurisdiction to entertain the petition. the matter is concluded by the decision of a division bench of the high court of lahore in sahib ditto mal v. mohra mal a.i.r.1945 lah. 58. the learned district judge, while conceding this, has held that the board having decided that the respondents were debtors within the meaning of the act and therefore competent to present the petition under section 9, its decision was final by virtue of the provisions of section 20a of the act and was not liable to be questioned in a civil court.5. section 20-a was added in that act by the amending act of 1942 which came into force on 21st april 1942 and reads as.....
Judgment:

Achhru Ram, J.

1. This is a second appeal from the order of the learned Additional District Judge of Ferozepore affirming on appeal the decision of a Subordinate Judge staying proceedings for execution of a decree obtained by the appellants against Tulsi Ram the father of the present respondents, pending the decision of an application under Section 9, Punjab Belief of Indebtedness Act.

2. The facts giving rise to this appeal may be briefly stated as follows: On 28th April 1936 the appellants obtained a decree for recovery of Rs. 2975 against Tulsi Ram the father of the respondents. After the death of the original judgment-debtor the decree-holders sued out execution of the decree against his daughters, the respondents, as his legal representatives and attached a house belonging to him which they had inherited. After an order for the sale of the house had been made, the respondents moved the Debt Conciliation Board of Ferozepore under Section 9, Punjab Belief of Indebtedness Act, for settlement of the above mentioned debt. In due course the Board sent notice of the application made to it to the executing Court which, purporting to act under Section 25 of the Act, made an order staying further proceedings. An application made by the decree-holders for the vacation of that order on the ground of the Board having no jurisdiction to entertain the application under Section 9 was dismissed. The decree-holders feeling aggrieved from the order of the executing Court went up in appeal to the Additional District Judge of Ferozepore but without success. They have now come up in second appeal to this-Court.

3. After hearing the learned Counsel for the parties, I am of the opinion that the order of the learned Additional District Judge cannot be sustained.

5. It is indisputable that the respondents, being merely the legal representatives of the original debtor, have no locus standi to present a petition under Section 9, Punjab Relief of Indebtedness Act, for settlement of the debt in question and that the Board had no jurisdiction to entertain the petition. The matter is concluded by the decision of a Division Bench of the High Court of Lahore in Sahib Ditto Mal v. Mohra Mal A.I.R.1945 Lah. 58. The learned District Judge, while conceding this, has held that the Board having decided that the respondents were debtors within the meaning of the Act and therefore competent to present the petition under Section 9, its decision was final by virtue of the provisions of Section 20A of the Act and was not liable to be questioned in a civil Court.

5. Section 20-A was added in that Act by the Amending Act of 1942 which came into force on 21st April 1942 and reads as follows:

If any question arises in any proceedings under this part of the Act whether a loan or liability is a debt or not or whether a person is a debtor or not, the decision of the Debt Conciliation Board shall be final, and shall not be called into question in any Court.

After a very careful consideration of the language of the section, and after giving due weight to the arguments addressed to me at the bar, I have no hesitation at all in holding that it has no application to the present case.

7. Before an order passed by a Board can have the effect given to it by the aforesaid section, it must be shown to be an order passed in proceedings sanctioned by the Act. This is clearly implicit in the language used by the Legislature. If the proceedings during the course of which the order was passed were themselves not warranted by the Act, and if, under the provisions of the Act, the Board had no jurisdiction to take cognizance of those proceedings, it is manifest that the order cannot be said to be one passed in any proceedings under the Act and is cannot, consequently, attract the application of the section. It is well settled that whenever the question arises whether the Court of special; jurisdiction has or has not jurisdiction to try a particular cause the Court of general jurisdiction is always the final authority as to whether or not the cause is within the special jurisdiction of j the special Tribunal. The Court of special juris: diction may, no doubt, try the question whether a particular cause does or does not fall within its jurisdiction.

7. However, from this it does not follow that a Court can merely by a wrong exercise of discretion or by a wrong construction of law confer jurisdiction upon itself to try a; cause. When the question arises as between the special Court and the Court of general jurisdiction as to whether a cause is within the jurisdiction of the special Court the decision of the Court of general jurisdiction must override the decision of the Court of special jurisdiction (vide observations of Dalip Singh, J. in K.L. Gauba v. The Punjab Cotton Press Co. Ltd. A.I.R.1941 Lah. 234 . Accordingly it was open to the civil Courts, in the present case, to enquire into the question whether the decision given by the Board as to the respondents being debtors within the meaning of Section 9, Punjab Relief of Indebtedness Act, had been given in proceedings which it had jurisdiction to entertain, and if they found that it did not possess such jurisdiction they could not be bound by such decision despite the provisions of Section 20A.

8. It is unquestionable that the respondents as the legal representatives of Tulsi Ram deceased had no right to move the Board under Section 9 for settlement of the debt in question. In the circumstances it must be held that the Board acted in excess of its legal powers in entertaining their petition and that all orders passed by it on that petition, including that holding the petitioners to be debtors within the meaning of the Act, were ultra vires.

9. I am, further, of the opinion that even in proceedings which may otherwise be regarded as properly constituted proceedings under the Act, the only effect of Section 20A is to make the Board the final judge as to whether an admitted or proved loan or liability falls within the definition of 'debt' as contained in Sub-section (1) of Section 7 of the Act and whether a person admitted or proved to be owing a debt possesses the qualifications mentioned in Clauses (i) and (ii) of Sub-section (2) of the aforesaid section. No finality, however, attaches to the decision of the Board where the dispute is as to whether a person had incurred a loan or liability or otherwise owed a debt as defined in the Act. The first of the above two propositions seems clearly to follow from the language of the statute. The words used in the first part of the section presuppose the existence of a loan or liability, the only question left to the Board for decision being that relating to the nature of such loan or liability, viz., whether, having regard to its nature, the loan or the liability can be said to fall within the definition of 'debt' as given in Section 7 (1). The second proposition is amply covered by authority. Before the amending Act of 1942 was passed, the concluding paragraph of Sub-section (2) of Section 7 ran as follows:

If any question arises in proceedings under this part of the Act, whether a person is a debtor or not, the decision of, a Debt Conciliation Board shall be final.

It will be observed that the second part of Section 20A almost verbatim reproduces the above paragraph. In dealing With the question of the interpretation to be placed on this paragraph, Tek Chand, J. who wrote the judgment of the Full Bench in Lachhman Singh v. Natha Singh A.I.R.1940 Lah. 401 observed as follows:

It is clear that this paragraph makes the Board the final judge as to whether a particular debtor possesses the qualifications required under the section. It does not refer to an adjudication as to the nature of the transactions entered into by him, i.e. whether or not they are debts as defined in the Act. In other words, all that this section provides is that if the Board had decided that the person concerned earns his livelihood in one of the manners mentioned in the sub-section or that he has, or has not, lost his status for any of the reasons given in the 'explanation', its decision cannot be questioned in a civil Court.

The same view was taken by the Division Bench in Sahib Dim Mal v. Mohra Mal A.I.R.1945 Lah. 58. The question that the Board had to decide in the present case was whether the legal representatives of the deceased debtor, the latter's property in whose hands was liable to be seized for the satisfaction of the debt, could themselves be said to owe the debt or to be liable therefor. In the above view of the implications of Section 20A, this was not one of the questions the Board's decision in respect whereof has been given a finality by the aforesaid section. Accordingly if the Board, contrary to the well recognized legal principles, held that such legal representatives owed the debt or were liable therefor, its decision could not be regarded as final and not liable to be called into question in the civil Court.

10. For the above reasons, I am of the opinion that the application made by the respondents to the Debt Conciliation Board of Ferozepore being not an application permitted of contemplated by Section 9, Punjab Relief of Indebtedness Act, Section 25 of the aforesaid Act was clearly inapplicable and the order made by the executing Court suspending the proceedings for the execution of the decree under that section was not justified. I, accordingly, allow this appeal and setting aside the orders of the Courts below remit the case to the executing Court for proceeding with the application for execution ac cording to law. The appellants shall have their costs of these proceedings in all the Courts.

11. Parties have been directed to appear in the executing Court on 10th May 1948.


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