Skip to content


Sailabala Das Jaya Vs. Nityananda Sarkar, Muktear - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1938Cal375
AppellantSailabala Das Jaya
RespondentNityananda Sarkar, Muktear
Cases ReferredNrishingha Chandra v. Kedar Nath
Excerpt:
- .....all the three rules is whether the civil court has jurisdiction to decide the question whether the debtor is a debtor within the meaning of the bengal agricultural debtors act. a question of a similar nature was discussed by this bench only recently in since reported in harish chandra v. chandra nath : air1938cal369 . the present three cases are sought to be distinguished on this ground that the settlement board has not yet come to any decision on the point and it is contended that when a court receives notice for stay under section 34, it is within its competence to decide whether the debt with regard to which the suit or proceeding is pending is such as to attract the operation of the act and thereby give jurisdiction to the settlement board. the lower court held that the civil court.....
Judgment:

S.K. Ghose, J.

1. Civil Revision Case No. 1708 of 1937 arises out of a money suit. The other two civil revision cases arise out of two execution cases. In all these cases notices were received by the Court for stay of proceedings under Section 34, Bengal Agricultural Debtors Act, 1935. The Court thereupon called upon the party concerned to prove that he was an agricultural debtor within the meaning of the Bengal Agricultural Debtors Act. In the money suit the defendant was absent. In the other two cases the applicant petitioned questioning the jurisdiction of the Civil Court to make an inquiry of that nature. In each case the Court decided that it had jurisdiction and held that the party concerned was not an agriculturist so as to attract the operation of the Bengal Agricultural Debtors Act. In that view it declined to stay the proceedings. The money suit was decreed ex parte. Against these orders these three Rules have been obtained.

2. The question which is common to all the three Rules is whether the Civil Court has jurisdiction to decide the question whether the debtor is a debtor within the meaning of the Bengal Agricultural Debtors Act. A question of a similar nature was discussed by this Bench only recently in Since Reported in Harish Chandra v. Chandra Nath : AIR1938Cal369 . The present three cases are sought to be distinguished on this ground that the Settlement Board has not yet come to any decision on the point and it is contended that when a Court receives notice for stay under Section 34, it is within its competence to decide whether the debt with regard to which the suit or proceeding is pending is such as to attract the operation of the Act and thereby give jurisdiction to the Settlement Board. The lower Court held that the Civil Court had jurisdiction relying on a remark of Edgley J. in Nrishingha Chandra v. Kedar Nath : AIR1937Cal713 . That was a case in which the notice had been received by the Court after the property of the judgment-debtor had been sold. So that the Court was in a position to say that the proceeding then pending before it was not a proceeding in respect of the debt which had been satisfied, but that it was a proceeding in respect of the confirmation of the sale. In that view it was held that the Court had no jurisdiction to stay the proceeding on receipt of a notice under Section 34 of the Act. The present case however is different, because no sale has taken place and the debt still exists, so that there is, in fact, a proceeding with regard to the debt which has been included in the application under Section 8 or in the statement under Sub-section (1) of Section 13, as the case may be.

3. It is contended that the Civil Court still has got jurisdiction to decide the question whether the debtor is a debtor within the Act or not and that it may refuse to stay the proceeding upon the view that the notice is invalid. Such contention would seem to conflict with the second part of Section 34 which provides that if the Board includes any part of such debt in the award under Section 25 or if the Board decides that, the debt does not exist, the suit or proceeding shall abate so far as it relates to such debt. The result therefore would be anomalous, if the Court were to proceed with the suit or proceeding in spite of the-notice. The other sections of the Act would confirm the view that if the Settlement Board, as also the Civil Court, were to proceed simultaneously, the result would be anomalous and in fact the decree of the Civil Court would come to nothing. Section 35' bars execution of decrees until the application before the Board has been disposed of. Section 36 provides that a decree of a Civil Court passed in regard to a debt after the date of the application under Section 8 shall be treated as nullity under certain conditions. Section 20' expressly provides that if any question arises in connexion with the proceedings before the Board whether the person is a debtor or not, the Board shall decide the matter. Section 40 prescribes the appellate-authority whose decision shall be final under Sub-section (6). Section 42 also gives power to the Board to make a reference to the appellate officer. Section 52 saves limitation for the time during which the proceedings are pending before the Board.

4. These and other provisions which need not be examined here show quite clearly that the Act has set up a special tribunal for the determination of the question whether the person is a debtor or not and that determination is final. It would be inconsistent with the provisions of the Act to hold that the Civil Court is to go into and decide the same question. It seems to me therefore that the lower Court exercised its jurisdiction illegally in deciding that the debt was not one under the Act and that therefore the proceedings before the Court should not be stayed. In so far as Revision Case No. 1708 is concerned it appears that the ex parte decree has already been made. Apparently this decree was passed in contravention of the provisions of Section 34 of the Act and Section 36 of the Act itself provides that such a decree shall be a nullity under the conditions prescribed in that section. But as far as this Rule is concerned it will not be within the province of this Court to set aside that decree. All that can be done is to direct that further proceedings in the execution of that decree shall be stayed. To that extent the Rule will be made absolute in C. R. No. 1708. In the other two cases the orders of the lower Court will be reversed and the Rules will be made absolute. There will be no order as to costs in these Rules.

Nasim Ali, J.

5. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //