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Mon Mohan Roy and ors. Vs. Santi Lochan Roy and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1945Cal378
AppellantMon Mohan Roy and ors.
RespondentSanti Lochan Roy and ors.
Cases ReferredMahendra Kumar De v. Nikunja Behari Goswami
Excerpt:
- .....application under section 8, bengal agricultural debtors act (hereinafter called the act) to the debt settlement board of garpara. he made that application alleging that he was the creditor of opposite parties 1 to 4 and he wanted the debts of the said opposite parties 1 to 4 to be settled by the debt settlement board. in his application he did not mention the fact that there were other creditors of the said four opposite parties. after his application had been registered in that board, the board issued a notice upon the debtors, opposite parties 1 to 4, to file a statement in accordance with the provisions of section 13 of the act. the debtors in due course filed the statement. in that statement they named the petitioners before us to be their creditors also. on the said information.....
Judgment:
ORDER

1. (Civil Rule No. 851 of 1943). Mohini Mohan Ghose, who is opposite party 5 in this rule, made an application under Section 8, Bengal Agricultural Debtors Act (hereinafter called the Act) to the Debt Settlement Board of Garpara. He made that application alleging that he was the creditor of opposite parties 1 to 4 and he wanted the debts of the said opposite parties 1 to 4 to be settled by the Debt Settlement Board. In his application he did not mention the fact that there were other creditors of the said four opposite parties. After his application had been registered in that Board, the Board issued a notice upon the debtors, opposite parties 1 to 4, to file a statement in accordance with the provisions of Section 13 of the Act. The debtors in due course filed the statement. In that statement they named the petitioners before us to be their creditors also. On the said information being furnished, the Debt Settlement Board issued a notice upon the petitioners before us to file their statement of claims issued under Section 13 of the Act. The petitioners filed statements wherein they said that they were also creditors of opposite parties 1 to 4 but they did not agree to the statement as to the amount of the money due to them by the said opposite parties as made in the statement of the said opposite parties. After several adjournments, the Board took into consideration the said, application of Mohini Mohan Ghose, opposite party 5, for settlement of the debts of the debtors and evidence was led by the parties. The petitioners before us raised two questions. Firstly, they contended that Mohini Mohan Ghose who had made the application under Section 8 of the Act was not a creditor of opposite parties 1 to 4, the debtors, and secondly, they said that the debtors, opposite parties 1 to 4, were not debtors within the meaning of the Act, as the primary source of their income was not from agriculture. Those two issues were considered by the Board on the evidence as recorded. The Board came to the conclusion that Mohini Mohan Ghose had failed to prove that he was a creditor of the said debtors. The Board further went into the question as to whether the said opposite parties were debtors within the meaning of the Act. It recorded the following findings: that opposite parties 1 to 3 had income from their zemindary proper, ties to the extent of Rs. 2000 a year, they had besides a business in a market called the Delhi Bazar, they had also money-lending business and a colliery in Jharia, and they had also income from their agricultural lands but the income was so very small that they could maintain themselves from their agricultural income, only for 2 or 3 months a year and had to rely upon their income from other sources indicated above for the rest of the year.

2. With regard to opposite party 4, the Board came to the conclusion that he was a senior pleader of the Dacca Court who resided with his family in the town of Dacca, that he had a taluk also, his income from agricultural lands was very small and he maintained himself and his family mainly from his professional income. On those findings the Board came to the conclusion that none of the opposite parties 1 to 4 were debtors within the Act and accordingly dismissed the application.

3. The applicant Mohini Mohan Ghose did not prefer any appeal. Two appeals were filed by the debtors, one by opposite parties 1 to 3 and the other by opposite parties 4 the pleader debtor. The appellate officer was the Sub-divisional Officer of Manikgunj. He did not at all consider the question as to whether Mohini Mohan Ghose was in reality a creditor of opposite parties l to 4. He did not also apply his mind to any of the material findings of the Debt Settlement Board on the' issue as to whether the said opposite parties were debtors within the Act or not. It seems that he did not also examine the evidence for the purposes of seeing whether the evidence supported those findings of the Debt Settlement Board. He said that the findings whether opposite parties 1 to 4 were debtors within the Act or not had not been properly considered by the Debt Settlement Board. He said that for the purposes of coming to a correct, finding the Debt Settlement Board ought to have followed the instructions given by the Local Government in what he calls to be 'the model order-sheet,' that is to say the Board ought to have determined what was exactly the net amount those opposite parties derived from their zamindary, colliery and other sources of income and what was the definite amount which they derived from their agricultural lands. The order of the Debt Settlement Board was set aside as the instructions given, according to the Sub-divisional Officer by the Local Government in the model order-sheet, which is printed at Appendix x, p. 248 of the Bengal Debt Settlement Manual, had not been followed. It would be a question whether by executive instructions the Provincial Government can interfere with the judicial powers or discretions of the Debt Settlement Board but that question does not arise in this case, for happily the Local Government has not in the model order-sheet done what the appellate officer attributes to it. Thereafter, the appellate officer has, for the reasons already stated, set aside the order of the Board and directed the matter to be heard again but by a different Board. The petitioners moved the District Judge under Section 40A of the Act. On 15th March 1943, the District Judge transferred the matter to the Additional Judge, First Court. On the same day, the Additional Judge recorded this order. 'Received by transfer. Perused record. I see no reason to interfere. Rejected.' Against this order the petitioners filed this application under Section 115, Civil P. C., and have obtained this rule.

4. We may at once say that the learned Additional District Judge has not done what he should do in dealing with applications made under Section 40A of the Act. As his order is liable to be revised by this Court, it is incumbent that he should give indications in his order to show that he had really applied his mind to the questions involved. At least there must be something appearing in his order to indicate what was the point for consideration in the case, what was his decision thereon and some reason, may be very brief, to support his conclusions. The procedure which has been laid down in the case in Mahendra Kumar De v. Nikunja Behari Goswami ('44) 48 C. W. N. 841, to which one of us was a party, is a salutary procedure and we hope that that procedure would be followed in future by the District Judges or the Additional District Judges in discharging their responsibilities under Section 40A of the Act. In this ease it is quite apparent that the Additional District Judge had not applied his mind to the important aspects of the case. One of the important issues raised and decided by the Debt Settlement Board was whether Mohini Mohan Ghose, the applicant under Section 8, was a creditor of opposite parties 1 to 4. On that question the Debt Settlement Board had recorded an adverse finding against the applicant. The appellate officer did not touch that point. The finding of the Debt Settlement Board raised an important question of law, a question which is of first impression and which we will decide in the course of our judgment. Even that question of law escaped the appellate officer. There may be an excuse so far as the appellate officer is concerned, but we do not think why that point should have escaped an experienced Judicial Officer, an Additional District Judge, if he carefully perused the orders of the Debt Settlement Board and of the appellate officer carefully. We have therefore to set aside the order of the learned Additional District Judge dated 15th March 1943. The setting aside of that order would involve a direction upon the revisional authority mentioned in Section 40A of the Act, to re-consider this case. But this case goes further. After having examined the record and in view of the facts which we have already recited in the earlier part of the judgment we do not think that the order of the Appellate Officer dated 25th January 1943 ought to stand. The finding of the Debt Settlement Board that Mohini Mohan Ghose was not a creditor of opposite parties 1 to 4 was not considered nor reversed by that officer. On that finding the important question of law arises, namely, whether if that finding be correct could these proceedings in the Debt Settlement Board go on?

5. Section 8 of the Act makes it quite clear that the Debt Settlement Board acquires jurisdiction only on an application made either by a debtor or by a creditor. If the man who makes the application under Section 8 is found to be not the creditor of the debtor whose debts he wants to settle the very foundation of the jurisdiction conferred by this special Act on a special tribunal is shaken. The learned Appellate Officer therefore ought to have considered that finding. If he had agreed with the Debt Settlement Board he ought to have maintained the order of dismissal without going into the further question whether opposite parties 1 to 4 were debtors within the Act. The remand order made by the Appellate Officer cannot therefore be supported. The Debt Settlement Board had given its decision as to whether opposite parties 1 to 4 were debtors within the Act. If that decision was wrong, it was open to the Appellate Officer to revise that decision on the evidence on the record. If the evidence was insufficient, it would have been in his discretion to allow the parties to lead additional evidence. But he does not seem to have noticed at all the material findings of the Debt Settlement Board and if those findings were good findings supported by evidence finding of the Debt Settlement Board that opposite parties l to 4 were not debtors within the Act would be a good finding. Instead of examining the record for the purposes of seeing whether there was evidence which would support those findings of the Debt Settlement Board the Appellate Officer looked to the model order-sheet and inferred something from that order-sheet which is not there. This is a vital defect even in that part of his judgment where he deals with the issue whether opposite parties 1 to 4 are debtors within the Act or not.

6. We accordingly set aside the order of the Appellate Officer and direct that the appeal preferred to the Appellate Officer, namely, Appeal No. 122 D. S. of 1942, be heard in the light of our judgment by the Appellate Officer. This rule is accordingly made absolute. The appearing opposite parties must pay the costs of the petitioner--hearing fee one gold mohur.

7. Civil Rule No. 852 of 1943.-- The judgment in Criminal Revision No. 851 of 1943 will govern Rule NO. 852 of 1943. The Appellate Officer must re-hear Appeal No. 121 D. S. of 1942 in the light of the observations which we have made in our judgment delivered in the connected rule. There will be no order as to costs in this rule.


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