1. The question involved in this appeal and cross objection is whether the holders of a certain mortgage decree are entitled to execute it against one of their judgment-debtors and, further, whether they are entitled to execute it at all. In the appeal, which is by the decree-holders, they contend that they are not debarred from executing the decree against judgment-debtor No. 5 by a so-called award made under the Bengal Agricultural Debtors Act, as wrongly held by the Court below. In the cross-objection, which is by one of the remaining judgment-debtors, the contention is that execution of the decree is barred altogether by limitation.
2. The controversy between the parties has arisen out of the following facts.
3. On April 5, 1933, the appellants obtained a final mortgage decree against six judgment-debtors for an amount of Rs. 25,215-7-10. 'The principal advanced on the mortgage was Rs. 18000/-. After obtaining the decree, the decree holders took out execution thrice, but were only able to realise the comparatively small sum of Rs. 1355-7-0/-. A fourth execution case was started on September 4, 1940, and when that execution case was pending, judgment-debtor No. 5, Hirendra Nath Mukherjee, made an application before the Kasimbazar Debt Settlement Board for a settlement of his debts. In his application he mentioned the decree held by the appellants but stated that he himself was liable for only Rs. 3,000/- out of the principal and that his subsisting liability was no more than Rs. 2000/-. On that application being filed, the Board issued the usual notice under Section 13(1) of the Bengal Agricultural Debtors Act, but as the decree-holders- neither submitted a statement of the debt nor produced their books of account, an order was made on June 20, 1942, under Section 13(2) of the Act by which the amount of the applicant's liability in respect of the mortgage debt was declare to be Rs. 2000/- as admitted by him. Thereafter, the decree-holders appeared to have bestirred themselves and made an application for review. The application filed and subsequent proceedings taken by the decree-holders by way of an appeal and then in revision ended with the same result. When the application before the Board was still pending, one of the decree-holders, namely, Tarit Bhusan Roy, died on March 17, 1944. No substitution of his heirs or legal representatives was made. An order for drawing up an award was made on November 15, 1944, and the award was actually drawn up on January 31, 1945. By that award the debt of judgment-debtor No. 5 in respect of this mortgage decree was declared to be Rs. 2000/- payable in twenty annual instalments,, commencing with Chaitra 1351 B. Section The application before the Board having been disposed of in the aforesaid manner, an intimation was sent to the executing Court on July 28, 1945, that the case had been disposed of The execution proceeding was thereupon resumed by the civil Court, but inasmuch as the decree-holders failed to take any steps, it was dismissed for default on 11-8-1945. Thereafter, on June 19, 1946, the decree-holders made-a fresh application for execution and it is out of that execution proceeding that the present appeal has arisen.
4. The application for execution was met by judgment-debtor No. 5, Hirendra Nath Mukherjee, with an objection under Section 47 of the Code of Civil Procedure. Broadly stated, his objections were two in number. He contended that inasmuch as an award by a Debt Settlement Board in respect of his liability was subsisting and he had not committed any default in paying the instalments prescribed thereby, execution of the decree by the civil Court was barred. It was contended in the second place that, in any view of the matter, the execution was barred by limitation.
5. The executing Court gave effect to the first contention, but rejected the second. It held that the execution would proceed against the-remaining judgment-debtors, but it could not proceed against judgment-debtor No. 5. It was held further that the application was not barred by limitation, inasmuch as the decree-holders were entitled to exemption of the period during which the application for the settlement of the debt was pending before the Debt Settlement Board. It is against that order of the executing Court that the present appeal has been preferred by the decree-holders.
6. In support of the appeal, Mr. Chandra Sekhar Sen contended in the first place that the executing Court was wrong in proceeding on the basis that there was an order in the present case made under Section 13 (2) of the Bengal Agricultural Debtors Act. His contention was that although originally an order under that section was made, ultimately the order was reviewed and the effective order which resulted in the award was one made under Section 18 (1) of the Act and not under Section 13 (12). The point of, that contention was that if the initial order could be proved to have been an order under Section 18 (1), Mr. Sen would be entitled to argue that the award, in so far as it dealt with this debt, was not a valid award at all.
7. In my opinion, this contention of Mr. Sen is not correct. The first order was made by the Board on June 20, 1942 and is Exhibit I in the case. It says quite clearly that the decree-holders had failed to comply with the notice issued to them under Section 13 (1) and that, accordingly, an order under Section 13 (2) was being made and issue of a notice in Form VII directed. It is true that this order was subsequently reviewed by an order dated November 14, 1942, but the effect of that order is not to alter the earlier order in any respect, but to re-affirm it as it was. In the second order as well, the Board pointed out that although the decree-holders had contended that the liability of the applicant was larger than he had admitted, they had failed to produce any papers in support of their contention and that in those circumstances the Board saw no reason to modify or revise the earlier order. The :result of the order of November 14, 1942, in my opinion, is not to substitute a new order for the order passed on June 20, 1942 but merely to confirm it. The order, in my opinion, remained an order under Section 13 (2).
8. Mr. Sen contended in the next place that the award was a bad award, inasmuch as, so far as one of the decree-holders was concerned, it was an award against a dead person. This contention was based on the fact that Tarit Bhusan Roy died on March 17, 1944, and the award which was drawn up on January 31, 1945, still showed Tarit Bhusan Roy as one of the decree-holders. In my opinion, this contention of Mr. Sen is also not correct. The real order which resulted in the award is the order of June 20, 1942, and it is not disputed that on that date Tarit Bhusan Roy was alive. The award drawn up on January 31, 1945, was, as the trial Court has pointed out, a mere piece of formality and in no way affected the merits of the case. The position really was as if one of the parties had died between the delivery of the judgment and the drawing up of the formal decree. In my opinion, the death of Tarit Bhusan Roy between June 20, 1942, and January 31, 1945, does not affect the validity of the award on the ground that his representatives had not in the meantime been substituted.
9. Mr. Sen contended in the third place that the award was bad for a third reason, which was that the Board had no jurisdiction to make any award at all with respect to this debt or to order any instalments. In my opinion that contention is correct and must be upheld. It is doubtful whether any debt which has been dealt with under Section 13 (2) of the Bengal Agricultural Debtors Act can be included in an award at all. But assuming that it can be included, there is another condition to be fulfilled and that condition is that either the decree-holder must agree to an amicable settlement or at least creditors, holding 40 per cent, of the total amount of debt owed by the debtor must agree to accept a settlement. In the present case it is clear from the award that apart from the decree held by the appellants, there were only three other debts. Even according to judgment-debtor No. 5 himself, his liability under,. the decree, was a liability for Rs. 2000/-. The remaining debts make up a total of only Rs. 172/12/0; and it is perfectly clear that, even assuming that all the remaining creditors agreed to accept an amicable settlement of their debts, their debts did not come up to anything like 40 per cent, of the total amount owing by the debtors. It appears to me that in those circumstances it is perfectly clear from the provisions of Section 19 of the Bengal Agricultural Debtors Act that the Board had no jurisdiction whatever to make any award with respect to this debt, far less to direct any instalments.
10. I am further of opinion that this amount could not be included in the award at all. 'Award' is defined in Section 2 (4) of the Act as
'an award made by a Board under sub-Section (2) of Section 19 or sub-Section (6) of Section 22, or as confirmed or modified by an Appellate Officer under sub-Section (5) of Section 40.'
Turning to sub-Section (2) of Section 19 one finds it provided that
'the terms of any settlement of debt under sub-Section (1) shall be embodied in an award to be made by the Board.'
Similarly, turning to sub-Section (6) of Section 22, one finds that
'an order passed by a Board under sub-Section (1) shall be embodied in an award to be made by the Board.'
The form of the award and matters which it should contain are given in Section 25, Clause (c) of sub-Section (1) of that section which reads as follows :
'details of all debts which have been determined under Section 18 or regarding the amdunt of which there is no doubt or dispute.'
It is noticeable that although this clause refers to the debts which have been determined under Section 18, significantly, it does not refer to debts declared under Section 13 (2). Mr. Ghose, who appears for the respondents contended that a debt declared under Section 13 (2) would come under the last words of the clause, namely, debts 'regarding the amount of which there is no doubt or dispute'. In my opinion that contention is not correct. These words it is clear, have been taken by Section 18 itself, sub- Section (1) of which says:
'If there is any doubt or dispute as to the existence or amount of any debt, the Board shall decide whether the debt exists and determine its amount.'
Read with Section 18 (1), Clause (c) of sub-Section (1) of Section 25 must, when it speaks of debts regarding the amount of which there is no doubt or dispute, be understood to refer to admitted amounts of debt and not amounts which have been declared by the Board to be amounts of the debt arbitrarily under Section 13 (2).
11. The scheme of the Act seems to me to be that if a creditor fails to comply with a notice under Section 13 (1), the Board may declare the amount admitted by the debtor to be the amount due. In such a case, there is no need to determine the amount of the debt under Section 18. But that is about all that the Board can do. If the creditor agrees to have the amount so declared settled for the purposes, of payment, it may be that the Board will be entitled to include it in an award. But if the creditor does not agree, as in this case the creditors did not, it seems to me that the only order which the Board can make is a penal order under Section 21 by which it can debar the creditor from recovering the debt for a period not exceeding ten years. In the absence of an agreement by the creditor, the Board, it appears to me, cannot deal further with a debt declared under Section 13 (2) except by way of making an order under Section 21, and it appears to me that this is a further reason for holding that the debt in the present case was wrongly included in the award.
12. Mr. Ghose who appears for the respondents however contended that assuming that the debt as declared by Section 13 (2) was not rightly included in the award, still the order made under Section 13(2) would itself be sufficient to debar execution of the decree as against the applicant before the Board. Mr. Ghose referred to the language of Section 13 (2) and invited us to hold that that section contained an absolute prohibition against proceeding in a civil Court with respect to a debt, which has been dealt with by a Board under Section 13 (2).
13. In my opinion this contention is not correct. As the argument turned solely on the language of Section 13 sub-Section (2), I shall read that sub-section. It reads as follows:
'If any creditor fails to comply with a notice under sub-section (1), the Board, if so empowered under Section 7, may pass an order in writing declaring that the amount of any debt due to him from the debtor on the date of such order shall, for the purposes of this Act, be deemed to be the amount stated in the statement of debt submitted by the debtor, and that no debt of which the creditor has failed to submit a statement, other than a debt which the debtor has included in his statement of debt shall be payable;
and such order shall not be questioned in any Civil Court or in any manner other than that provided in this Act.'
It will be noticed that all that the section says is that the debt due from the debtor shall be deemed to be the amount stated in the statement of debt for the purposes of this Act, and the section proceeds to say that such order shall not be questioned in any civil Court or in any manner other than that provided in this Act. The section in my view means that the amount declared by the Board under this section shall be deemed to be the amount payable by the debtor for the purposes of this special Act, but for no other purpose, and that what the creditor is prevented from questioning is the order that for the purposes of the Act the amount admitted by the debtor shall be deemed to be the amount really due. The prohibition does not extend beyond those limits, and as I read the section, it is not an absolute prohibition debarring the creditor from asserting a higher right against the debtor in any circumstances.
14. This view of the section finds abundant support from an examination of several other sections of the Act. In the first place, the language of Section 13 (2) may be profitably contrasted with the language in which Section 18(4) is expressed. That section is to the following effect:
'When the Board has determined under subsection (2) the amounts of the principal of a debt due from a debtor and of the arrears of interest due thereon, the decision of the Board in this respect shall not be questioned in any Civil Court or to any manner other than that provided in this Act.'
It will be noticed that the language here is that the decision of the Board in this respect shall not be questioned in any civil Court or in any manner other than that provided in this Act, whereas the language in Section 13 (2) is that the order under that section shall only operate to fix the amount of the debt for the purposes of the Act and that the creditor shall not be entitled to question the validity or propriety of that order. In my view the difference of language between Section 13 (2) and Section 18 (4) is not without significance and does indicate that the legislature did not intend to impose the same kind of absolute prohibition by Section 13(2) as it did intend to impose by Section 18 (4).
15. Turning now to Section 25 (3), one finds that an award shall be binding on the debtor and his creditors in supersession of all previou decisions of a civil Court. It is to be noticed that what is stated to supersede the decision of a civil Court is only an award. It is not stated that an order under Section 13 (2) will also supersede a decision of a civil Court. Turning next to Section 33, one finds that civil and revenue Courts, are debarred from entertaining any such application or proceeding against a debtor in respect of any debt included in an application under Section 8 or any debt for which any amount is payable under an award. Once again it is to be noticed that Section 33 does not speak of any order under Section 13 (2) but speaks only on an award. Proceeding next to Section 35, one notices again that under that section, no decree of a civil Court shall be executed for the recovery of a debt included in an application under Section 8 of the Act until an award to which such debt is included has ceased to subsist under sub- Section (5) of Section 29. It is noteworthy that the section does not say that no decree of a civil Court shall be executed, if with respect to the subject-matter on the decree there is an order under Section 13 (2) subsisting. But the matter, in my opinion is placed beyond all doubt by the next section, namely Section 36. That section says that any decree of a civil Court passed after the date of an application under Section 8 shall be a nullity in so far as it is inconsistent with any order passed by a Board under sub- Section (2) of Section 13 regarding any debt etc. What is noticeable here is that the legislature in this section addressed itself to the task of stating the effect of an order under Section 13 (2) and in doing so it made only decrees passed after an application made to the Board nullities if they conflicted with an order made under Section 13 (2), but did not make a similar provision with regard to decrees passed before an application made before the Board. The present case is one where the decree was passed before an application was made to the Board, and to my mind Section 36 (a) makes it perfectly clear that an order under Section 13(2) is not intended to affect the execution of such a decree if such a decree is otherwise executable.
16. I am accordingly of opinion that if the amount of this decree could not rightly be included in the award and was not rightly included, as I have already held, execution could not be said to be barred by reason simply of the fact that apart from the decree an order Section 13 (2) had been made.
17. There is another small point which was not specifically urged before us but which is noticed in the judgment under appeal. The order by which the amount was directed to be paid in a certain number of instalments is the order dated November 14, 1942. The instalments there mentioned are twenty instalments beginning from Chaitra .1349 up to 1368 B.S. This was an order passed apparently by the Kashimbazar Debt Settlement Board where the application was initially filed. For some reason and by some process which are not apparent on the record, the case ultimately went to the Berhampore Special Debt Settlement Board and that Board made an order on November 15, 1944 and directed an award to be written up and signed in accordance with the order of the 'previous Debt Settlement Board of Kasim-bazar', obviously meaning thereby the order of November 14, 1942. When, however, the award came to be written up, the instalments were altered. Whereas by its order dated November 14, 1942 the Kasimbazar had directed the instalments to commence from Chaitra 1349, the award directs them to commence from Chaitra 1351. The lower Court took notice of this discrepancy, but observed that it was immaterial and that the instalments directed by the Kasimbazar Board would prevail. I am unable to agree with the learned Judge that the discrepancy can be got rid of in that manner. What is effective under the Act is the award and it is the award which debars the creditor from pursuing his ordinary remedies before a civil Court. The civil Court, when it is confronted with a discrepancy between an order settling a debt and an award drawn up in purported accordance with that order, is not entitled to say that the order would prevail rather than the award. It must take the award as it is, and, in my view, since the award was not an award in accordance with the order upon which it was based, it was not a valid award at all.
18. In my opinion, therefore, for the reasons given above the award was a bad award in so much as it purported to settle this particular debt in the absence of the concurrence of the creditors to whom at least forty per cent. of the total amount of the applicant's debt was due. It was also bad, inasmuch as it purported to include an amount declared under Section 13(2) in the absence of any consent of the decree-holders that it should be included in the award. It was further bad for the reason that it was inconsistent with the order upon which it was based. The award being an invalid award, its existence, in my opinion, constitutes no bar to the execution of the decree as against judgment-debtor No. 5 and the order of the learned Judge, so far as that matter is concerned must be set aside.
19. The second point urged was one of limitation. It was not urged in the appeal, but urged in the cross objection and Mr. Ghose purported to put it forward on behalf of all the remaining judgment-debtors. It appears, however, that the cross objection is only by one judgment-debtor, namely, judgment-debtor No. 3.
20. The point of limitation was taken before the lower Court as well. The learned Judge had no difficulty in disposing of it by reference to Section 52 of 'the Bengal Agricultural Debtors Act. He pointed out that the application before the Board was pending from December 7, 1940 up to August 11, 1945 and that if that period was excluded the application for execution would be clearly within time. In the learned Judge's opinion, the decree-holders were entitled to an exclusion of that period under Section 52 of the Act.
21. Mr. Ghose contended that in applying Section 52 the learned Judge had been wrong inasmuch as that section applied only to periods of limitation prescribed by the Limitation Act or it might be by some other Act, but did not apply to such a provision as Section 48 of the Code of Civil Procedure by which no period of limitation was prescribed. The contention was that Section 48 merely lays down the maximum period within which any application for execution can ever be made and that, it was said, was something very different from prescribing a period for making an application. This question, which was at one time hotly debated in the Courts and caused much difference of judicial opinion, may now be taken to be fairly well settled. It has now been held at least by this Court and two other High Courts, namely, Allahabad and Bombay that the period mentioned in Section 48 ol the Code of Civil Procedure may truly be regarded as the period prescribed for applying for execution. To take an example, paragraph 11(3) of the Third Schedule to the Code of Civil Procedure provides that the period during which a judgment-debtor's property in under the management of the Collector
'shall be excluded in calculating the period of limitation applicable to the execution of any decree affected by the provisions of this paragraph in respect of any remedy of which the 'decree-holder has been temporarily deprived.'
22. It has been held by this Court that the period of limitation, as mentioned in paragraph 11(3) of the Third Schedule to the Code, includes the period of twelve years referred to in Section 48 of the Code of Civil Procedure. Similarly, it has been held that a period of a decree-holder's insolvency shall be excluded from the period of twelve years, prescribed by Section 48. If one looks at the substance of the matter one must at once be convinced that there is no real difference between the various periods prescribed by the Limitation Act and a provision of the nature of Section 48 of the Code. What Section 48 provides is that no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of twelve years from the date of the decreei sought to be executed. It is true that the reference in this provision is not to the making of the application but to the making of the order, but in. substance there is in my view no difference. The section really amounts to providing that the application for execution must be niade within such time as would enable the Court to make an order thereon within twelve years and such, a provision is not in my view, in substance different from a provision .which prescribes a certain period within which an application must be made. It is true that certain of the other High Courts have taken the view that the period prescribed by Section 48 of the Code of, Civil Procedure is not a period prescribed for limitation properly so called, but at .least so far as this Court is concerned, as also the Allahabad and Bombay Courts, the opposite view has prevailed. The first contention of Mr. Ghose on this head must therefore be overruled.
23. Mr. Ghose next contended that assuming the period prescribed by Section 43 of the Code could be enlarged by excluding therefrom the period mentioned in Section 52 of the Bengal Agricultural Debtors Act, still the requisites of the latter section must be fulfilled. His contention was that in so far as the remaining judgment-debtors were concerned, the decree-holders were not debarred from proceeding with the execution as against them. He pointed out that long before the order for stay was made in this case, it had been held by this Court in 'Abu Taher v. Chandra Moni',43 Cal W N 318 that When one of several joint debtors made an application before a Debt Settlement Board and the whole decree was under execution before a civil Court, the execution was liable to be stayed only so far as the interest of the applicant before the Board was concerned, but not liable to be stayed as respects the remaining judgment-debtors. It was accordingly contended that having regard to that decision and the law settled thereby, the decree-holders were not debarred from proceeding with the execution as against the remaining judgment-debtors, and consequently they are not entitled to the benefit of Section 52 as respects them.
24. Whether in such a case the decree-holders can be said to be debarred or not, is a matter not free from difficulty. It is true that according to the decision on which reliance was placed, the deccee-holders would be entitled in such a case to proceed as against the remaining judgment-debtors, and if an order staying the whole execution case was made, to have that order set aside. But I am not quite sure that the decree-holders would be bound to proceed against the remaining judgment-debtors in such a case, if the civil Court did in fact pass an order staying the whole execution proceeding. This possibility was recognised in the very decision on which reliance was placed, for at page 321 of the report, Mukherjea J. repelled the contention that the decree-holders were not entitled to proceed inasmuch as the entire execution case had been stayed by pointing out that there was nothing to show that such was the case. His Lordship observed as follows:
'I am also not impressed by the argument of Mr. Bagchi that the notice is unambiguous and refers to the entire execution proceeding and the civil Court is not competent to go beyond the words used in the notice. The notice speaks of the execution case as between the persons who are applicants before the Board and the decree-holder. It is quite possible to construe the words to mean only the execution proceedings so far as it relates to the applicants before the Board and when it is possible to put such construction upon these words the Court should lean against a construction which makes the act of the Board illegal or contrary to law.'
25. The implication of that passage is that if a Board, having before it an application by one of several joint debtors yet served a notice on the civil Court which covered the [entire case before the latter and if the civil Court passed an order staying the whole execution case, the decree-holders might be regarded as debarred from proceeding even as against the judgment-debtors who were not before the Board. In my view, where; an order has been made by a civil Court staying the whole execution proceeding, so long as that order subsists, the decree-holders are ''debarred' within the meaning of Section 52, if the section is otherwise applicable. It appears from the order-sheet of the executing Court in the present case that on December 7, 1940 an order was passed in the following words: 'Let further proceedings of this case be stayed'. That order prima facie covers the whole execution case. The notice received from the Debt Settlement Board is not on the record and it might well be that that notice also did not make a distinction between the applicant judgment-debtor and the other judgment-debtors. In the facts of this case I should be inclined to hold that the decree-holders were in fact debarred from executing the decree even against the remaining judgment-debtors.
26. Mr. Ghose, however, contended that Section 52 did not apply at all in the case of the remaining judgment-debtors inasmuch as that section on its words, only applies to the execution of the decree as against that one of the joint judgment-debtors who had made an application before the Board. This contention might have to be seriously considered if it was open to Mr. Ghose to take it in the cross-objection. As I have indicated in an earlier part of the judgment, the only objection filed before the executing Court was an objection by judgment-debtor No. 5. The remaining judgment-debtors did not file any objection. As far as the record shows, the point of limitation was taken by judgment-debtor No. 5 and the learned Judge dealt with the point, so far as it affected his case. No special case as to the remaining judgment-debtors was before the learned Judge at all inasmuch as they had not even pleaded before him that the execution of the decree as against them was barred. In those circumstances it seems to me to be impossible that the remaining judgment-debtors should be entitled to urge the bar of limitation against the execution of the decree against them in the cross-objection to the present appeal. They not having filed any objection and their case raising any special point not having had to be considered and no order as affecting such case having been passed, any question raised by them in this cross-objection regarding the executability of the decree, specially as against them is outside the proper scope of the appeal and consequently outside the ambit of the cross-objection. The test as is well-known must always be whether the cross-objectors could themselves have appealed. It is quite clear, they not having raised and suffered any adverse order on the question now sought to be urged, they could not have appealed as to that question from the, order passed by the learned Judge and consequently they cannot be allowed to urge it in the cross-objection. Whether they will be entitled hereafter to raise the same objection or barred by conclusive res judicata is a matter or which I am not called upon to say anything. It is sufficient for the purposes of this appeal and the cross-objection to say that the judgment-debtors, other than judgment-debtor No. 5 have no locus standi at all to urge in the cross-objection that the execution of the decree is barred by limitation particularly as against them. So far as judgment-debtor No. 5 is concerned, it is quite clear that even on the interpretation of Section 52 insisted or by Mr. Ghose, the execution is not barred against him, for an application regarding the debt so far as he was concerned was pending before the, Board and execution of the decree to that extent of the debt was certainly liable to be and was stayed. The decision of the lower Court on the second question must therefore be upheld.
27. For the reasons given above, this appeal is allowed. The judgment and order of the Court below, in so far as it has been held that execution of the decree, so far as judgment-debtor No. 5 is concerned, was barred, are set aside and it is directed that the execution shall proceed against the said judgment-debtor as well. The application made by judgment-debtor No. 5 under Section 47 of the Code shall stand dismissed. The appellants are entitled to their costs of this appeal and of the Court below - hearing fee in this appeal being assessed at three gold mohurs. The cross-objection is dismissed with costs to the appellants, the hearing fee being assessed at three gold mohurs.
28. I agree.