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Bibhuti Bhusan Roy Vs. Bholanath Singha Roy and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1945Cal326
AppellantBibhuti Bhusan Roy
RespondentBholanath Singha Roy and ors.
Cases ReferredIn Kali Sundar Roy v. Khem Chand Bothra.
Excerpt:
- .....presented an application under section 8 (1), bengal agricultural debtors act, before the special debt settlement board at ranaghat for settlement of the aforesaid mortgage debt and some other debts owing by them. on 1st january 1940, the special debt settlement board dismissed the said application under section 17 (2), bengal agricultural debtors act. the debtors, took no further steps in that matter and did not challenge the order by way of an appeal to the appellate officer. nearly three years after that, the petitioner filed a suit to enforce the mortgage bond in the court of the munsif at ranaghat and the suit was registered as title suit no. 43 of 1943. on receipt of the summons of the suit, the opposite parties filed another application under section 8, bengal agricultural.....
Judgment:

B.K. Mukherjea, J.

1. This rule is directed against an order of the Munsif at Ranaghat, dated 11th November 1943, by which he stayed a mortgage suit, pending before him, on receipt of a notice under Section 34, Bengal Agricultural Debtors Act. The facts lie within a short compass and are uncontroverted. The petitioner advanced a sum of us. 475 to the opposite parties on the basis of a mortgage bond executed by the latter in his favour. On 15th July 1939, the opposite parties presented an application under Section 8 (1), Bengal Agricultural Debtors Act, before the Special Debt Settlement Board at Ranaghat for settlement of the aforesaid mortgage debt and some other debts owing by them. On 1st January 1940, the Special Debt Settlement Board dismissed the said application under Section 17 (2), Bengal Agricultural Debtors Act. The debtors, took no further steps in that matter and did not challenge the order by way of an appeal to the appellate officer. Nearly three years after that, the petitioner filed a suit to enforce the mortgage bond in the Court of the Munsif at Ranaghat and the suit was registered as Title Suit No. 43 of 1943. On receipt of the summons of the suit, the opposite parties filed another application under Section 8, Bengal Agricultural Debtors Act before the Debt Settlement Board at Fatehpur for settlement of the very same debts which were the subject-matter of the first application. The Fatehpur Debt Settlement Board issued a notice under Section 34, Bengal Agricultural Debtors Act, for stay of the mortgage suit pending before the Munsif at Ranaghat. The Munsif at first refused to stay the suit, being of opinion that the order was without jurisdiction, but, later on, he revised his own order and directed a stay of all further proceedings in the suit, pending the disposal of the application by the Settlement Board. It is the propriety of this order that has been challenged before us in this rule. It cannot be disputed that there is no provision in the Bengal Agricultural Debtors Act under which a second application for settlement of debts could be presented to a Debt Settlement Board after a first application in respect of the same debts is dismissed under Section 17 (2) of the Act. Section 8 (5), Bengal Agricultural Debtors Act, provides as follows :

Notwithstanding anything contained in Sub-section (1) a Board may for good and sufficient reason entertain a further application in respect of any debt incurred before the date of a first application under Sub-section (1) or Sub-section (2) whether such application was made to it or to any other Board, except when such application under either of the said subsections has been dismissed under Sub-section (3) of Section 13 or under Clause (b) (ii) of Sub-section (1) or Sub-section (2) of Section 17.

This obviously contemplates a case where a, debt incurred before the first application was omitted from it through inadvertence or otherwise, and a fresh application in respect of such debts can be entertained by the board if the debtor can show good and sufficient reason for the omission. It cannot apply to a case of this description when the second application is made in respect of the identical debt that was the subject-matter of the first application.

2. Assuming, however, that Section 8 (5), Bengal Agricultural Debtors Act, is wide enough to include a case where the second application is in respect of a debt which was not omitted from but included in the first application, it is perfectly clear from what the sub-section itself provides that the second application in respect of such debts is not entertainable by the board if the previous application was dismissed under Sub-section (3) of Section 13 or under Clause (b) (ii) of Sub-section (1) or Sub-section (2) of Section 17 of the Act. The question for our consideration is whether a civil Court can ignore the notice issued by the Debt Settlement Board on the strength of the second application under Section 34, Bengal Agricultural Debtors Act, on the ground that it is without jurisdiction, or is it for the board itself before which the second application is filed to decide whether that application is entertainable or not. The judicial opinion on this point cannot be said to be quite uniform.

3. In Kali Sundar Roy v. Khem Chand Bothra. : AIR1940Cal473 , it was held by Edgley J. that in a case of this description, the order of dismissal made on the first application has the effect of excluding the debt from the scope of the Act, and as Section 34, Bengal Agricultural Debtors Act, only applies to debts which fall within the scope of the Act, a civil Court would be quite competent to ignore the notice and refuse to stay the proceedings. This decision was followed by Henderson J. in Purnalal Nandan v. Bhupendra Chandra Dutt : AIR1941Cal31 . Both these decisions were considered by Boxburgh and Blank JJ. in Jadu Mandalini v. Sarajini Choudhurani ('43) 47 C.W.N. 888, and it was held that even if the second application is not entertainable by reason of the provisions of Section 8 (5), Bengal Agricultural Debtors Act, it is for the board and not for the civil Court to decide and say that such an application is not competent in law. The learned Judge expressed the opinion that in view of the amendment of the provision of Section 20, Bengal Agricultural Debtors Act, the decision of Edgley J. in the case referred to above can no longer be accepted as correct. The propriety of this decision was doubted by Mitter and Sharpe JJ. in the still more recent case in Dayanand Singh Jha v. Majimannessa ('44) 48 C. W. N. 712. It is an established principle of law that when a tribunal exercises a subordinate or special jurisdiction, the question whether the condition essential to give it jurisdiction is present or not is left to the ordinary Courts of the land unless this power is expressly taken away from the latter. In Secretary of State v. Mask & Co. ('40) 27 A. I. R. 1940 P. C., it was thus observed by their Lordships of the Judicial Committee:

It is settled law that the exclusion of the jurisdiction of the civil Courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.' Secretary of State v. Mask & Co. ('40) 27 A. I. R. 1940 P. C. at p. 236.

4. It is quite true that the Legislature may, by express words, vest a special tribunal with exclusive and final authority to determine the matters which constitute the condition precedent to the exercise of its powers under the Act, and in such eases the jurisdiction of the civil Court must necessarily be ousted. When, therefore, a notice is issued by a Debt Settlement Board under Section 34, Bengal Agricultural Debtors Act, the civil Court would have jurisdiction to determine whether the notice is a valid one or not and to ignore it if it is found to be a nullity unless the validity of the notice is challenged on a ground which is within the exclusive competence of the Debt Settlement Board to decide. In Kali Sundar Roy v. Khem Chand Bothra. : AIR1940Cal473 , Edgley J. expressed the opinion that the effect of an order of dismissal upon the first application would be to exclude the debt which was the subject-matter of that application from the scope of the Act. If the Debt Settlement Board issues a notice under Section 34 on a second application being presented to it in respect of the same debt, the civil Court could refuse to give effect to the notice on the ground that the application did not relate to a debt within the meaning of the Act. We agree with Roxburgh and Blank JJ. that this view is not tenable after the amendment of Section 20, Bengal Agricultural Debtors Act, and under the amended section as it stands at present, the authority to decide whether a liability amounts to a debt or not rests entirely with the Debt Settlement Board. We think, however, that the matter could very well be looked from a different standpoint. The civil Court may not have any authority to decide whether the second application related to a debt within the meaning of the Act, but it is certainly competent to determine whether the Debt Settlement Board had at all any jurisdiction to entertain the second application when the first application was dismissed under Section 17 (2), Bengal Agricultural Debtors Act. Section 8 (5) of the Act expressly takes away from the board the authority to entertain the second application for settlement of debts when the first one has been dismissed under Sub-section (3) of Section 13, or under Clause (b) (ii) of Sub-section (1) or Sub-section (2) of Section 17. No exclusive authority has been given anywhere to the Debt Settlement Board to decide whether the order of dismissal on the first application was under the sections mentioned aforesaid. In such circumstances, we think that there is nothing in law which prevents the civil Court from examining the matter itself and it can ignore a notice if it is satisfied that the second application on the basis of which the notice was issued was not entertainable by the Debt Settlement Board.

5. As in the case before us, it is not disputed that the first application was dismissed under Section 17 (2), Bengal Agricultural Debtors Act, we are clearly of opinion that the Debt Settlement Board had no jurisdiction to entertain or proceed with the second application and notice issued by it in that connexion is void in law and can be ignored by a civil Court. The result, therefore, is that we make the rule absolute, set aside the order of stay made by the trial Judge and direct that the suit should proceed. We make no order as to costs in this Court.

Ellis, J.

6. I agree.


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