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Shashi Bhusan Basuri Vs. Moti Bala Dassi W/O Ram Prasad Mandal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1945Cal317
AppellantShashi Bhusan Basuri
RespondentMoti Bala Dassi W/O Ram Prasad Mandal and ors.
Cases Referred and Raja Reshee Case Law v. Satis Chandra Pal
Excerpt:
- .....money-lenders act, but on 8th may 1943, they presented an application before the ranigunj special debt settlement board under section 37a, bengal agricultural debtors act praying for restoration of the properties which were sold in execution of the mortgage decree and for settlement of the mortgage debt.2. the petitioner resisted the application on various grounds. it was contended inter alia that the debt settlement board could not entertain or proceed with the application without the sanction of the collector, the debt being admittedly over five thousand rupees; that the conditions laid down in sub-sections (1) and (2) of section 37a, bengal agricultural debtors act, were not fulfilled ; and that as the judgment-debtors had previously filed a suit in a civil court for reliefs under.....
Judgment:
ORDER

B.K. Mukherjea, J.

1. This revision case raises a somewhat interesting point of law which turns upon the construction of Section 37A (3), Bengal Agricultural Debtors Act. The material facts are not in dispute and may be shortly stated as follows: The petitioner before us obtained a final mortgage decree for a sum of Rs. 12,635 and odd annas against the predecessors-in-interest of the opposite party in the Court of the Subordinate Judge at Asansol on 13th December 1932, on the basis of a mortgage bond executed by the latter in his favour. The mortgage decree was put into execution in Execution Case No. 204 of 1935 of the same Court and the mortgaged properties were put up to sale and purchased by the decree-holder on 12th December 1936. The sale was confirmed on 24th August 1937, and soon after that the petitioner took delivery of possession of the properties purchased by him. On 10th June 1942, the judgment debtors filed a suit in the Court of the Subordinate Judge at Asansol for obtaining relief under Section 36, Bengal Money-Lenders Act, but before that suit could come up for hearing, it was withdrawn under Order 23, Rule 1, Civil P. C., on 23rd November 1942, the Court giving the plaintiffs liberty to bring a fresh suit on the same cause of action. The judgment-debtors did not institute a fresh suit under the Bengal Money-Lenders Act, but on 8th May 1943, they presented an application before the Ranigunj Special Debt Settlement Board under Section 37A, Bengal Agricultural Debtors Act praying for restoration of the properties which were sold in execution of the mortgage decree and for settlement of the mortgage debt.

2. The petitioner resisted the application on various grounds. It was contended inter alia that the Debt Settlement Board could not entertain or proceed with the application without the sanction of the Collector, the debt being admittedly over five thousand rupees; that the conditions laid down in Sub-sections (1) and (2) of Section 37A, Bengal Agricultural Debtors Act, were not fulfilled ; and that as the judgment-debtors had previously filed a suit in a civil Court for reliefs under the Bengal Money-Lenders Act which they subsequently withdrew, Sub-section (3) of Section 37A operated as a bar to the entertainment of the application by the Debt Settlement Board. This last objection was heard and decided first and the Debt Settlement Board held, by its order dated 15th April 1944, that as the suit under the Bengal Money-Lenders Act was withdrawn by the judgment-debtors, it did not stand in the way of their filing an application under Section 37A, Bengal Agricultural Debtors Act. On appeal by the decree-holder, the order was reversed and the appellate officer came to the conclusion that as the matter did come before a civil Court, the provision of Sub-section (3) of Section 37A, Bengal Agricultural Debtors Act, would be attracted, and it was immaterial whether the suit was actually heard on its merits or was allowed to be withdrawn. Against this order of the appellate officer, there was a petition of revision filed before the District Judge of Burdwan under Section 40A Bengal Agricultural Debtors Act. The District Judge by his order, dated 12th August 1944, reversed the decision of the appellate officer and restored that of the Debt Settlement Board. It is against this judgment of the District Judge that the present rule has been obtained. The point for our consideration in this rule is whether Sub-section (3) of Section 37A, Bengal Agricultural Debtors Act, would apply to a case like this, when prior to the application made under Section 37A, the debtor had filed a suit in a civil Court for relief under the Bengal Money-Lenders Act but without proceeding with the suit, withdrew it with liberty to institute a fresh suit on the same cause of action. Now, Sub-section (3) of Section 37A, Bengal Agricultural Debtors Act, stands as follows:

No Board shall entertain an application under Sub-section (2) if such application relates to a debt in respect of which a civil Court has previously entertained a suit instituted or an application made under the provisions of the Bengal Money-Lenders Act, 1940; and no civil Court shall entertain a suit instituted or an application made under the provisions of that Act if such suit or application relates to a debt in respect of which a Board has previously entertained an application made under the provisions of this section.

The Legislature, it will be seen, uses the word 'entertained' and not decided, and we think that to bring a case within the purview of this sub-section, it is not necessary that a suit or application under the Money-Lenders Act must be heard and decided by a civil Court previous to the presentation of an application under Section 37A, Bengal Agricultural Debtors Act, before a Debt Settlement Board. To entertain is to 'admit a thing for consideration,' and when a suit or proceeding is not thrown out in limine, but the Court receives it for consideration and disposal according to law, it can certainly be regarded as entertaining a suit or proceeding, no matter whatever the ultimate decision might be. It may be pointed out here that the scheme of the Bengal Agricultural Debtors Act is different in many respects from that of the Bengal Money-Lenders Act. The reliefs under the Money-Lenders Act could be claimed by any 'borrower' as defined in the Act, whereas the Bengal Agricultural Debtors Act aims at giving relief to the agriculturist debtors alone. There is no provision in Agricultural Debtors Act which prevents a 'debtor' from approaching a Debt Settlement board for settlement of his debts even though he had previously filed a suit or started a proceeding in a civil Court under the Bengal Money-Lenders Act. On the other hand, the Legislature is particularly anxious to exclude interference by civil Courts with proceedings before or awards made by Debt Settlement Boards, and Section 36, proviso (ii), Bengal Money-Lenders Act, expressly lays down that in granting relief under Section 36, Bengal Money-Lenders Act, the Court cannot do anything which affects an award made by a Debt Settlement Board. It seems to us that Section 37A, Bengal Agricultural Debtors Act, makes a departure in this respect from the general scheme of the Act, and not only it prevents a civil Court from entertaining a suit filed by a debtor for obtaining relief under the Money-Lenders Act when an application under this section has already been made before a Debt Settlement Board, but a Debt. Settlement Board is like-wise precluded from entertaining an application under this section if the debtor had previously started a proceeding in respect of the same debt under the Bengal Money-Lenders Act. The reason may be that the remedy provided by Section 37A, Bengal Agricultural Debtors Act, is somewhat exceptional in its character, and it appears that so far as the matter covered by it is concerned, the remedies provided under the two Acts have been made alternative and not co-existent or cumulative; and when a party has made its choice and exercised a right under one Act, his act operates as a bar as regards seeking relief under the other Act. The language of Sub-section (3) of Section 37A, Bengal Agricultural Debtors Act, clearly indicates that if a proceeding is pending before a civil Court the Debt Settlement Board cannot entertain an application under this section; and a fortiori a decision by a civil Court would certainly operate as a bar.

3. The question is what would be the position if a suit or application was filed before a civil Court but before it could be heard it was withdrawn with liberty to bring a fresh suit or application on the same cause of action. We are inclined to hold that in such cases the suit or application is to be deemed as not being filed by the debtor or entertained by the Court at all and Sub-section (3) does not stand in the way of the Debt Settlement Board's entertaining the application under Section 37A, Bengal Agricultural Debtors Act. Whatever might be the position when a suit or proceeding is withdrawn without leave of the Court, it is clear that when a Court grants leave to file a fresh suit or proceeding on the identical cause of action, the withdrawn suit has no existence in the eye of the law. It is available for no purpose and the parties are relegated exactly to the same position which they occupied before the suit was brought: Behari Lal v. Baran Mai Dasi ('95) 17 All. 53. In our opinion, when a debtor withdraws his suit filed before the civil Court under the Bengal Money-Lenders Act, with the express permission of the Court which reserves to him the right of bringing a fresh suit on the same cause of action, it cannot be said that he exercised his right or, adopted the remedy under the Bengal Money-Lenders Act. The order of withdrawal does not give him a fresh cause of action, nor is the period of limitation in any way affected by it. He can still file the suit under the Bengal Money. Lenders Act on the original cause of action and the choice cannot be said to have been finally made as to which of the two alternative remedies he would adopt. In such circumstances, we think that when one of the rights has not been really exercised, there is no justification for depriving him of the other right.

4. Mr. Das in course of his arguments has referred us by way of analogy to the provisions of Section 109, Ben. Ten. Act, as it stood prior to the amending Act of 1928, and has pointed out that according to the decisions of a Pull Bench of this Court as well as of the Judicial Committee of the Privy Council (vide Purna Chandra v. Narendra Nath ('25) 12 A. I. R. 1925 Cal. 845 and Raja Reshee Case Law v. Satis Chandra Pal ('29) 16 A. I. R. 1929 P. C. an application made under Section 105, Ben. Ten. Act, and subsequently withdrawn with or without the sanction of the Court, bars a suit on the same subject-matter before a civil Court under Section 109, Ben. Ten. Act- These decisions, it must be remembered, proceeded on the strict interpretation of the words actually used in Section 109, Ben. Ten. Act, and it was held that an application made even though subsequently withdrawn would come within the expression 'subject of an application.'

5. The wording of Section 37A, Bengal Agricultural Debtors Act, is certainly different. Quite apart from this, we think that the amendment of Section 109, Ben. Ten. Act, by the amending Act of 1928 demonstrates beyond doubt that the interpretation put upon the section in the decisions referred to above was contrary to the intention of the Legislature.

6. Our view, therefore, is that the learned District Judge was right in holding that Section 37 A (3), Bengal Agricultural Debtors Act, did not operate as a bar to the entertainment of the application by the Debt Settlement Board. This rule, therefore, should be discharged. We desire to make it clear that it would be open to the decree-holder to press for consideration before appropriate authority the other objection raised by him, namely, that the amount of the debt being over five thousand rupees, the Debt Settlement Board had no jurisdiction to entertain the application under Section 37A, Bengal Agricultural Debtors Act, without the sanction of the Collector ; and we express no opinion on this point at all. Subject to this observation, this rule is discharged, We make no order as to costs in this Court.

Ellis, J.

7. I agree.


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