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Jadu Mandalani W/O Laljan Mondal Vs. Sarajini Choudhurani W/O Harendra Narayan Ghosh Chowdhury and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1945Cal100
AppellantJadu Mandalani W/O Laljan Mondal
RespondentSarajini Choudhurani W/O Harendra Narayan Ghosh Chowdhury and anr.
Cases ReferredWolverhampton New Waterworks Co. v. Hawksford
Excerpt:
- .....for the board to decide, and the act itself contains sufficient machinery for correction of the board's decision, if erroneous. whether it shall entertain the application or not is in some cases a matter of discretion, raising the question of 'good and sufficient reason' as to which the act itself gives very little information. it may be noted that under section 17 there is a similar rather vague discretion given to a board in the matter of dismissal of an application if it 'does not consider it desirable or practicable to effect a settlement of debts,' or if in its opinion the applicant fails to pursue his application with due diligence. the vague discretion given in section 8 (5) seems to correspond to this in giving an opportunity of revival, and this is one of the reasons why we.....
Judgment:
ORDER

1. This rule has been issued against an order of the Munsif, First Court, Berhampur, vacating an order staying proceedings in mortgage suit No. 19 of 1941 in which a preliminary decree had been passed. The judgment-debtor in the suit is the present petitioner, and the plaintiff is the opposite party. The plaintiff had, before institution of the mortgage suit, filed an application before the Banneswar Debt Settlement Board; the application was dismissed under Section 13 (3), Bengal Agricultural Debtors Act, for non-appearance of the petitioner, the debtor before the board. It is the case of the petitioner that in fact this was a collusive proceeding of which she had no knowledge. After the preliminary decree was passed in the mortgage suit, she made an application under the Bengal Agricultural Debtors Act before the Kusmore Debt Settlement Board, and on 7th August 1942, that board issued a notice under Section 34 of the Act, as a result of which the mortgage suit was stayed by an order dated 14th August 1942. The plaintiff then moved to have the order vacated on the ground of the dismissal of the application previously made before the Banneswar Board; according to the petitioner this was the first intimation she had of the previous proceeding. The Kusmore Board in the meantime proceeded with the petitioner's application and determined her debts on 6th February 1943. On 6th March the opposite party moved the board to reconsider its order, but his application was rejected. He then on 17th March 1943, obtained the order at present under consideration by which the Munsif vacated the previous stay order.

2. A somewhat important question of conflict of jurisdiction between the civil Courts and debt settlement boards arises for decision. There are two cases on the point, Kali Sundar Roy v. Khum Chandra Bothra : AIR1940Cal473 , decided by Edgley J. and Purna Lal Nandan v. Bhupendra Chandra Dutt : AIR1941Cal31 decided by Henderson J. who followed the reasoning of the former case. Edgley J. considered the provision in Section 8 (5), Bengal Agricultural Debtors Act, permitting filing of a further application 'for good and sufficient reason' to be limited to eases where the debtor through oversight had omitted to mention a particular debt in his first application. He also held that the effect of the first dismissal was to exclude the debt from the scope of the Act, and that as Section 34 only applies to debts which fall within its scope the executing Court was justified in not staying proceedings. The decision is one of June 1940; the amending Act 8 of 1940, came into force just after this in July 1940,' amending Section 20 to make the determination of the question whether a liability is a debt or not a matter for decision by the boards. The reasoning on which the decision of Edgley J. is based is therefore no longer valid. With great respect we have some doubt as to whether the interpretation given by Edgley J. to the provisions of Section 8 (5) of the Act is sound. It is not, however, necessary for us to decide the point, since the first application was one dismissed under Section 13 (3) of the Act, and so clearly one included within the exception in Section 8 (5), so that in any view of the interpretation of the section a further application either in respect of debts included in the first application or in respect of another debt could not be entertained by the Board.

3. The point that arises for decision here is whether the Courts are to decide the question whether a board ought or ought not to entertain a particular further application and whether the Court can override a decision by a board on the point, and hold that a board has acted without jurisdiction in entertaining an application, when according to the view taken by the Court, the board has made a mistaken decision, as to its power to entertain the application, or has entertained an application in ignorance of the fact of a previous application. In our opinion the matter is one for the board to decide, and the Act itself contains sufficient machinery for correction of the board's decision, if erroneous. Whether it shall entertain the application or not is in some cases a matter of discretion, raising the question of 'good and sufficient reason' as to which the Act itself gives very little information. It may be noted that under Section 17 there is a similar rather vague discretion given to a board in the matter of dismissal of an application if it 'does not consider it desirable or practicable to effect a settlement of debts,' or if in its opinion the applicant fails to pursue his application with due diligence. The vague discretion given in Section 8 (5) seems to correspond to this in giving an opportunity of revival, and this is one of the reasons why we doubt the correctness of the view taken by Edgley J. But, however that may be, the existence of the discretion in Section 8 (5) makes it difficult to hold that the intention is that the Courts may also decide this point. Then too, even the excepted cases in Section 8 (5), where the previous dismissal has been under Section 13 (3) or Section 17 (1) (b) (ii) or Section 17 (2), involve some decision of fact, which it appears must be one for the board to decide. The decision of the board will be subject to appeal to an appellate officer under Section 40 (1) (a), and his decision in turn will be subject to revision by the District Judge under Section 40A. Section 34 also has been amended since the decision of Edgley J., in Kali Sundar Roy v. Khum Chandra Bothra : AIR1940Cal473 . Under the section as amended both the appellate officer and the District Judge while the appeal or revision is before them are to give notice under Section 34 to the relevant Court. If the view of the learned Munsif is correct then he can equally ignore the notice given by either the appellate officer or the District Judge and he can ignore the decision of the District Judge, for instance, if he does not agree with it. In fact the exclusion of the jurisdiction of the Courts, and the provisions for stay of proceedings before them pending proceedings before the boards are an essential corollary to the provisions for debts to be dealt with by the board and for their decisions to be the subject of appeal and revision.

4. For the respondent reliance is placed on the provisions of Section 20 where explicit provision is made that the boards are to decide the questions whether an applicant is a debtor or not, or whether a liability is a debt or not, whereas there is no similar express provision with regard to the question whether a further application shall be entertained or not. Special provision for these points was clearly necessary because the questions arise directly before the civil Courts under sections like Sections 33, 34 and 35 of the Act where the Courts have to decide on the action to be taken by them with respect to proceedings before them relating to 'debtors' or 'debts' though the question arises in connexion with proceedings before a board'. Section 20 makes it clear that the board's decision is to prevail, and must be accepted by the Courts. The question as to whether a board shall or shall not entertain an application under Section 8 (5) of the Act is essentially one which must primarily arise before the board itself for decision, and we think that exclusion of the jurisdiction of the civil Courts to determine the question is clearly implied though not explicitly expressed. As we have pointed out already, the decision of the board to entertain the application is one subject to appeal under Section 40, and the order of the appellate officer himself is final, subject to revision by the District Judge under Section 40A. On behalf of the petitioner in support of this view, Mr. Gopendra Nath Das relies on the case in Secy. of State v. Mask & Co. , a case under the Sea Customs Act. It was there pointed out that the determination of the question must rest on the terms of the particular statute under consideration and decisions on other statutory provisions are not of material assistance, and that the main principles were to be found in Wolverhampton New Waterworks Co. v. Hawksford (1859) 6 C. B. (N.S.) 336. Their Lordships left open the question whether resort could have been had to the civil Courts against the order of the Assistant-Collector of Customs made under Section 182, Sea. Customs Act, and prior to the appeal to the Collector of Customs under Section 188. In the present case no appeal has in fact been made by the opposite party against the order of the Kusmore Board.

5. The petitioner admits having knowledge shortly after 6th October 1942 of the dismissal, of the opposite party's application by the Banneswar Board. Under the proviso to Section 13 (3), Bengal Agricultural Debtor's Act, she could have moved that board to set aside the dismissal, and could have appealed to the appellate officer. The petitioner had in the mean time made her application to the Kusmore Board. It may be that the proper order in the matter should be that the proceedings of the Kusmore Board should be set aside, since the application ought not to have been entertained by it, and the petitioner should have been referred by that board to her remedy under the proviso to Section 13 (3) of the Act; but we consider that these are all matters for determination by the machinery set up by the Act itself. Until the order of the Kusmore Board entertaining the petitioner's application is set aside there is an application before a board, and the civil Court having notice of it. under Section 34 of the Act ought to stay proceedings ins regard to a debt included in the application. We accordingly make the rule absolute and set aside the order of the learned Munsif vacating the previous stay order, and his order directing the mortgage suit No. 19 of 1941, before him to proceed. We make no order as to costs.


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