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Broja Bashi Roy Vs. Nagarbashi Choudhury - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1938Cal362
AppellantBroja Bashi Roy
RespondentNagarbashi Choudhury
Cases ReferredNursingdas Tunsookdas v. Chogemull
Excerpt:
- .....appealed against this order on 31st may 1937. while the appeal was pending in the court of the learned district judge, the judgment-debtor, broja bashi roy, obtained a stay order from the debt settlement board at nayergaon on 23rd june 1937 and this order was duly communicated to the appellate court. the learned district judge however ignored the stay order and proceeded to hear the appeal on 3rd july 1937, and by his order dated 22nd july 1937 he allowed the appeal from the decision of the munsif, under which the civil court sale had been set aside. it is against this order of the learned district judge that the petitioner has moved this court in its revisional jurisdiction under section 115, civil p.c.2. the first point urged by the learned advocate for the petitioner in this case.....
Judgment:
ORDER

Edgley, J.

1. In this case, a rule has been obtained by Broja Bashi Roy, a judgment-debtor, against Nagar Bashi Choudhury, the decree, holder and certain other people, to show cause why the order of the learned Sessions Judge of Tippera dated 22nd July 1937 should not be set aside. It appears that Nagar Bashi Choudhury obtained a mortgage decree against the petitioner on 2nd May 1936 and that in execution of that decree the property of the petitioner was put to sale and was purchased by the decree-holder, Nagar Bashi Choudhury on 9th October 1936. The petitioner then instituted proceedings under Order 21, Rule 90, Civil P.C. in order to have the sale set aside. He was successful in these proceedings and the sale was actually set aside on 24th April 1937. The decree-holder appealed against this order on 31st May 1937. While the appeal was pending in the Court of the learned District Judge, the judgment-debtor, Broja Bashi Roy, obtained a stay order from the Debt Settlement Board at Nayergaon on 23rd June 1937 and this order was duly communicated to the Appellate Court. The learned District Judge however ignored the stay order and proceeded to hear the appeal on 3rd July 1937, and by his order dated 22nd July 1937 he allowed the appeal from the decision of the Munsif, under which the Civil Court sale had been set aside. It is against this order of the learned District Judge that the petitioner has moved this Court in its revisional jurisdiction under Section 115, Civil P.C.

2. The first point urged by the learned advocate for the petitioner in this case is that the learned District Judge was in error in holding that there was no debt in existence at the time when he heard the appeal. With regard to this point, in my opinion there can be no doubt that as soon as the sale was set aside by the order of the Munsif on 24th April 1937, the position of the decree-holder and the judgment-debtor was restored to the position as it stood before the order was made: in other words, the debt which had been extinguished by the sale was revived as soon as the Munsif's order was passed : and it followed that at the time when the learned Judge heard the appeal on 3rd July 1937, there was an un-adjusted debt owing by the judgment-debtor to the decree-holder. The next point argued on behalf of the petitioner was with reference to the view taken by the learned District Judge to the effect that, in any case, an Appellate Court is not bound to comply with the terms of a notice issued under Section 34, Bengal Agricultural Debtors' Act, 1935. With regard to this point, it was urged that the language used by the Legislature in Section 34 of the Act is sufficiently wide to include both suits and appeals within the scope of matters which must be stayed by a Civil Court on receipt of a notice under this section. In my view, there is considerable force in this contention. The first part of Section 34 reads as follows:

When an application under Section 8 or a statement under Sub-section (1) of Section 13 includes any debt in respect of which a suit or other proceeding is pending before a Civil or Revenue Court, the Board shall give notice thereof to such Court in the prescribed manner....

3. The use of the word 'other' before the term 'proceeding' is peculiar; and it seems to imply that the term 'proceeding,' is intended to cover suits, appeals and all other matters connected with litigation which can come before a Civil or Revenue Court, in respect of the debts to which the section relates. In Section 141, Civil P. C, some distinction appears to have been drawn between suits' and proceedings' but this does not appear to be the case under Section 34, Bengal Agricultural Debtors' Act. It would seem therefore that the Legislature intended to make the section as wide as possible in order to prevent all Civil and Revenue Courts from dealing with matters relating to debts in respect of which notices have been issued under this section. As pointed out by Panckridge J. in Nursingdas Tunsookdas v. Chogemull (1937) 42 CWN 293:

The main intention of the Act is however clear, and it is that the liabilities of certain debtors shall be ascertained, 'settled' and recovered through the agency of Settlement Boards to the exclusion of the Civil Courts. Such being the intention one should construe the Act, if possible in such a way as will carry it into effect equitably and reasonably.

4. On a reasonable interpretation of Section 34, Bengal Agricultural Debtors' Act 1935, there can, I think, be no doubt that by using the expression, other proceeding' the Legislature intended to include appeals execution proceedings and matters of any kind connected with litigation relating to debts, in order that requisite steps with reference to the settlement of these debts might be undertaken by the Debt Settlement Boards constituted under the Act. Whether or not Section 34 of the Act applies to the High Court is a separate question which, it is not necessary to discuss in connexion with this litigation. Having regard to the considerations mentioned above, I am of opinion that the learned District Judge had no jurisdiction to hear the appeal against the order of the Munsif dated 24th April 1937, after he had received a notice from the Debt Settlement Board under Section 34, Bengal Agricultural Debtors' Act. This rule must therefore be made absolute. I make no order as to costs in the rule.


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