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Srikanta Kamar and anr. Vs. Atul Krishna Biswas and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1945Cal214
AppellantSrikanta Kamar and anr.
RespondentAtul Krishna Biswas and ors.
Excerpt:
- .....settlement of their debts under section 8, bengal agricultural debtors act, before the insenbaria debt settlement board. the only debt specified in the application was that covered by the mortgage decree mentioned above, and the debtors put a cross mark in column 9 of the petition which signified that no part of the claim was admitted by them. there was a notice issued by the debt settlement board to the creditor under section 13(1), bengal agricultural debtors act directing him to submit a statement of the debt due to him, and as he failed to comply with this requisition, the debt settlement board made an order on 6th december 1940, declaring that nothing was due to the creditor. this order the debt settlement board purported to make under section 13(2), bengal agricultural debtors act.....
Judgment:

B.K. Mukherjea, J.

1. The facts giving rise to this appeal may be shortly stated as follows: Respondent 1, Atul Krishna Biswas, obtained a mortgage decree against the appellants and the pro forma respondents in the Court of the First Munsif at Diamond Harbour on 11th December 1935. The decree was set aside on appeal; but was eventually restored on second appeal to this Court on 16th January 1940. The total amount decreed being Rs. 1863 and annas odd together with costs of all the Courts. On 15th June 1940, the appellants presented a petition for settlement of their debts under Section 8, Bengal Agricultural Debtors Act, before the Insenbaria Debt Settlement Board. The only debt specified in the application was that covered by the mortgage decree mentioned above, and the debtors put a cross mark in column 9 of the petition which signified that no part of the claim was admitted by them. There was a notice issued by the Debt Settlement Board to the creditor under Section 13(1), Bengal Agricultural Debtors Act directing him to submit a statement of the debt due to him, and as he failed to comply with this requisition, the Debt Settlement Board made an order on 6th December 1940, declaring that nothing was due to the creditor. This order the Debt Settlement Board purported to make under Section 13(2), Bengal Agricultural Debtors Act on the basis of the debtors' statement that nothing was due to them under the mortgage decree obtained by the creditor. Against this order, the creditor took an appeal to the appellate officer. The appeal was allowed, the order of the Debt Settlement Board was set aside, and the appellate officer directed that the matter be sent back to the Special Debt Settlement Board at Diamond Harbour with a direction that the application should be dismissed under Section 17 of the Act.

2. The debtors thereupon made an application for revision to the District Judge against the order of the appellate officer under Section 40A, Bengal Agricultural Debtors Act. The learned District Judge held that the appeal to the appellate officer was incompetent as it was filed after the period of limitation had expired. The result, therefore, was that the order of the Debt Settlement Board was left undisturbed. On 8th December 1941, the decree-holder applied for execution of the mortgage decree in the Court of the First Munsif at Diamond Harbour, and the debtors raised objections under Section 47, Civil P.C., contending inter alia that the order of the Debt Settlement Board was a bar to the execution proceedings. The Munsif was of opinion that the order which the Debt Settlement Board purported to make under Section 13(2), Bengal Agricultural Debtors Act was illegal and a wrong order, but as no award was yet made by the Debt Settlement Board, the proceedings under the Bengal Agricultural Debtors Act must be deemed to be still continuing and accordingly he directed that the execution proceedings should be stayed pending the disposal of the case by the Debt Settlement Board. On appeal this decision was reversed, and the Additional Subordinate Judge who heard the appeal came to the conclusion that the entire proceedings before the Debt Settlement Board were without jurisdiction and consequently the order of the Board which was a void order could not operate as a bar to the execution proceedings. It is the propriety of this decision that has been challenged before us in this appeal.

3. On hearing the learned advocates on both sides, it seems to us that the order of the Court of appeal below should be upheld. We agree with Mr. Bose that if the Debt Settlement Board was competent to entertain an application presented to it by the debtors and deal with it in accordance with the provisions of the Bengal Agricultural Debtors Act, the mere fact that it made a wrong order under Section 13(2) of the Act would not entitle a civil Court to ignore the proceedings before the Board and treat the order as a nullity; the illegal or wrong order must be set aside within proper time and by a proper proceeding before the appellate officer, and this the creditor must be deemed to have failed to do in the present case. We hold, however, that the application presented by the debtors could not be regarded as one for settlement of debts as contemplated by the Bengal Agricultural Debtors Act, and the Debt Settlement Board had no jurisdiction to entertain such an application or proceed with it. It is only a debtor that can make an application for settlement of his debts under Section 8, Bengal Agricultural Debtors Act. He might not admit the claims of his creditors in their entirety or his case might be that the dues of some of his creditors were fully satisfied, and with regard to some only his liability still remained: but it is necessary before he can invoke the jurisdiction of the Debt Settlement Board that he should admit that there is still a debt owing by him to somebody. If he denies the existence of a debt altogether, no petition for settlement of debts could, in our opinion, possibly be made; and if his grievance is that he is being harassed by another person for a debt which does not exist, either in fact or in law, his remedy lies elsewhere, and not by an application for settlement of debts under Section 8, Bengal Agricultural Debtors Act.

4. In the Case before us, as I have said already, the name of only one creditor, namely respondent 1, appeared in the application for settlement of debts, and the amount due to him was stated to be nil. Mr. Bose argues that the cross mark in column 9 does not show that according to the debtors, the debt was non-existent. It merely indicated a neutral position that the debtors did neither admit nor deny the debt. We do not think that we can accept this contention as sound. The cross mark has been taken to be equivalent to nil or zero not only by the Courts below in the present ease, but that it was also the view taken by the Debt Settlement Board as well as by the appellate officer, and it is on this basis that the Debt Settlement Board purported to make an order under Section 13(2), Bengal Agricultural Debtors Act. This position is strengthened by the fact that the appellants in their application for stay of execution before this Court stated expressly that the decree was satisfied by a subsequent payment of a smaller sum of money which the creditor accepted in full satisfaction of his dues. In these circumstances, we are of opinion that the entire proceedings before the Debt Settlement Board were misconceived and ultra vires Of the Board and the order made by it under Section 13(2), Bengal Agricultural Debtors Act is a void order which cannot operate as a bar to the present execution proceedings. The result is that this appeal is dismissed. We make no order as to costs in this Court. No order is necessary on the rule and it is recalled.

Ellis, J.

5. I agree.


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