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Firm Mansa Ram Babu Ram Vs. Ganga Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberEx. Second Appeal No. 58 of 1951
Judge
Reported inAIR1952P& H410
ActsDebt Law; Punjab Relif of Indebtedness Act, 1934 - Sections 20
AppellantFirm Mansa Ram Babu Ram
RespondentGanga Singh and ors.
Appellant Advocate Shamair Chand and; P.C. Jain, Advs.
Respondent Advocate K.L. Jagga and; C.L. Puri, Advs.
DispositionAppeal allowed
Cases ReferredNazir Ahmad v. King Emperor
Excerpt:
.....at least forty per cent, of his total debts are owing have come to an amicable settlement with the debtor, now, therefore, we the members of the board. 629 at page 643, where his lordship said :in their opinion, the effect of the statute is clearly to prescribe the mode in which confessions are to be dealt with by magistrates when made during an investigation, and to render inadmissible any attempt to deal with them in the method proposed in the present case. ' in other words, it is submitted, that it is a well-recognised rule of construction that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all and, therefore, if a certificate was to be given in a particular manner showing that creditors to whom at least forty per cent, of..........in the meanwhile on the 11th of september 1948 the debt conciliation board gave its decision and issued a certificate which, according to the learned district judge, ordered that the decree-holder was not competent to execute his decree till the month of har. sambat 2015 (corresponding to june 1958). on the 5th of october 1948 a fresh application for execution was filed by the decree-holder and notice was issued to the judgment-debtors who raised two contentions, i.e., that the decree could not be executed before june 1958 because of the order of the debt conciliation board dated the 11th of september 1948 and that the houses under attachment were exempt fromattachment and sale because of the provisions of section 60(1)(ccc) of the code of civil procedure by virtue of which one.....
Judgment:

Kapur, J.

1. This is a decree-holders appeal against an appellate order of District Judge Bhagat Singh confirming the order passed in execution by Mr. Manohar Singh, Subordinate Judge, Hoshiarpur, dismissing the decree-holder's application for execution.

2. Briefly stated, the facts of the case are that firm Mansa Ram Babu Ram obtained a money decree for Rs. 1,900/- on the 29th of April 1943 against Ganga Singh and Ran Singh, two brothers, who are Tanks by caste. Two houses and two vacant sites were attached in execution of the decree and the judgment-debtors made an application to the Debt Conciliation Board, Hoshiarpur, under Section 9 of the Punjab Relief of Indebtedness Act, 1934, for the settlement of their debt. The execution proceedings were suspended on the 3rd of July 1943 on intimation having been sent by the Board to the executing Court.

3. On the 1st of October 1943 the decree-holder applied for revival of execution proceedings as no settlement had taken place between the parties before the Board. But this application was dismissed in default on the 4th of October 1948. In the meanwhile on the 11th of September 1948 the Debt Conciliation Board gave its decision and issued a certificate which, according to the learned District Judge, ordered that the decree-holder was not competent to execute his decree till the month of Har. Sambat 2015 (corresponding to June 1958). On the 5th of October 1948 a fresh application for execution was filed by the decree-holder and notice was issued to the judgment-debtors who raised two contentions, i.e., that the decree could not be executed before June 1958 because of the order of the Debt Conciliation Board dated the 11th of September 1948 and that the houses under attachment were exempt fromattachment and sale because of the provisions of Section 60(1)(ccc) of the Code of Civil Procedure by virtue of which one residential house and other buildings attached to it belonging to a person, who is not an agriculturist, and occupied by him, are exempt frpm attachment and sale in execution of a decree.

4. The learned Judge of the executing Court held that the certificate issued by the Debt Conciliation Board was 'intra vires' and was binding on the decree-holder; that the decree could not be executed before June 1958 and in any case one of the houses was exempt from attachment and sale in execution of the decree. On appeal 'being taken to the learned District Judge, the finding of the executing Court on the question of the competency of the Debt Conciliation Board to issue a certificate was held in favour of the judgment-debtor and it appears to me that no argument was addressed on the question against the finding of the executing Court in regard to the house being exempt from attachment and sale in execution of the decree.

5. A lengthy argument was addressed to me on the jurisdiction of the Board to decide finally the question whether the judgment-debtors were or were not 'debtors' within the meaning of that word as used in Section 7 of the Punjab Relief of Indebtedness Act. There is a long array of judgments of the Lahore High Court on which reliance is placed by Mr. P. C. Jain and which lay down that the decision of the Debt Conciliation Board on the question of a person being a 'debtor' is one which can be questioned in a Court of general jurisdiction, that is the civil Court.

I need only refer to those judgments and they are -- 'Lachhman Singh v. Natha Singh', I.L.R. (1941) 22 Lah. 71 (F.B.): -- 'K. L. Gauba v. Punjab Cotton Press Co. Ltd.', I.L.R. (1941) 22 Lah. 524 (F.B.) at page 529; -- 'Sahib Ditta Mal v. Mohra Mal', 46 Pun. L. R. 376: -- Thambu v. Bhartu', 47 Pun. L. R. 339 (F.B.); -- 'Dalip Singh v. Honda Ram', 48 Pun. L. R. 421; --'Firm Thakar Dass-Madan Mohan v. Mt. Ko-shaliya Devi', A.I.R. 1949 E. P. 27 and judgment by myself in -- 'Jagdish Parshad v. Vir Singh', A.I.R. 1951 Punjab 323. As against this Mr. Jagga relied on a judgment of the Supreme Court in -- 'Rai Brij Raj Krishan v. S. K. Shaw', 1951 S.C.R. 145, where it was held that a civil Court cannot interfere with the order of a Rent Controller ordering eviction on the ground of non-payment of rent as the jurisdiction to pass such an order was exclusively in the Rent Controller and could not be interfered with by civil Court.

6. The question whether the certificate is final or not and was issued by a Tribunal having jurisdiction to issue it or not need not in this case be decided because I find that the certificate which could be issued by the Board should have been in the following terms: 'Whereas..... a debtor, and ..... ..... his creditor, parties to the application for settleme'nt of debts..... havefailed to come to any settlement of their dispute, and whereas .....debtor aforesaidhas offered to pay.....creditor aforesaid thesum of Rs. .....in satisfaction of his claimof Rs.....in monthly/quarterly/yearly instalments.....and whereas the Board havingregard to all the circumstances of the case, is of the opinion that this is a fair offer on the part of the debtor which the creditorought reasonably to accept, and whereas the Board is satisfied that other creditors of the debtor to whom at least forty per cent, of his total debts are owing have come to an amicable settlement with the debtor, now, therefore, we the members of the Board.....hereby grant this certificate to.....the debtor.....'

7. The certificate which has been issued in the present case, it is submitted, is not in accordance with the statutory certificate which should have been issued. It is not a proper certificate and, therefore, it is ineffectual. Re-liance is placed on an observation of Lord Roche in -- 'Nazir Ahmad v. King Emperor', 17 Lah. 629 at page 643, where his Lordship said :

'In their opinion, the effect of the statute is clearly to prescribe the mode in which confessions are to be dealt with by magistrates when made during an investigation, and to render inadmissible any attempt to deal with them in the method proposed in the present case.'

In other words, it is submitted, that it is a well-recognised rule of construction that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all and, therefore, if a certificate was to be given in a particular manner showing that creditors to whom at least forty per cent, of his total debts were due had come to an amicable settlement, and that has not been shown, the certificate is of no avail and cannot bar the civil Court from proceeding with the execution. The contention of the counsel seems to me to be correct. In giving the certificate under Section 20 of the Punjab Relief of Indebtedness Act the Board has to state that in their opinion the offer made by the debtor is a fair one and ought to be accepted. They should also state that creditors to whom at least forty per cent, of the debts are due have accepted this amicable settlement and it is only in that circumstance that the certificate becomes binding. I find no proof of this agreement by the creditors of the debtor to whom forty per cent, was owed.

8. I am, therefore of the opinion that the learned Judges of the Courts below were in error in accepting this certificate to be efficacious as a bar to the prosecution of the execution application. I, however, pass no opinion as to the argument which was raised that it is for the civil Court to decide whether the Judgment-debtor is a 'debtor' within Section 7 of the Punjab Relief of Indebtedness Act or not, because, in my opinion, it is not necessary to decide that in this case.

9. I would, therefore, allow this appeal, set aside the orders of the Courts below and direct that execution should proceed. In the circumstances of this case I leave the parties to bear their own costs in this and in the Courts below.


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