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Mahadeo Alias Mahadeblal Agarwala Vs. Indra Chand Alias Inder Chand Kezriwal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1945Cal417
AppellantMahadeo Alias Mahadeblal Agarwala
Respondentindra Chand Alias Inder Chand Kezriwal and ors.
Cases ReferredDerastulla v. Radha Krishna Dutt
Excerpt:
- .....by which he refused to stay proceedings in execution of a decree on receipt of a notice from a debt settlement board under section 34, bengal agricultural debtors act, 1935. the material facts are not in controversy and may be stated as follows. the decree-holder whose name is inder chand kezriwal obtained a money decree against four judgment-debtors in the original side of this court on 23rd april 1934. the decree was transmitted for execution to the court of the subordinate judge at nadia, and on 2nd september 1941, the decree-holder started execution case no. 102 of 1941 in that court, and prayed for realisation of the decretal dues by attachment and sale of certain immovable properties belonging to the judgment-debtors and situated within the district of nadia. after the.....
Judgment:

B.K. Mukherjea, J.

1. This appeal is on behalf of one of the judgment-debtors and is directed against an order of the Subordinate Judge, Nadia, dated 29th April 1942, by which he refused to stay proceedings in execution of a decree on receipt of a notice from a Debt Settlement Board under Section 34, Bengal Agricultural Debtors Act, 1935. The material facts are not in controversy and may be stated as follows. The decree-holder whose name is Inder Chand Kezriwal obtained a money decree against four judgment-debtors in the Original Side of this Court on 23rd April 1934. The decree was transmitted for execution to the Court of the Subordinate Judge at Nadia, and on 2nd September 1941, the decree-holder started Execution Case No. 102 of 1941 in that Court, and prayed for realisation of the decretal dues by attachment and sale of certain immovable properties belonging to the judgment-debtors and situated within the district of Nadia. After the attachment processes were issued and sale proclamation published, the attached properties were directed to be sold on 30th April 1942. On 27th April 1942, the Subordinate Judge received a notice under Section 34, Bengal Agricultural Debtors Act, from the Chairman, Debt Settlement Board at Sarrah, requesting the Court to stay further proceedings in execution, in view of an application for settlement of debt made by Mahadeblal Agarwala, one of the judgment-debtors. The Court by its order, dated 29th April 1942, refused to stay further proceedings being of opinion that as the debt was founded on a judgment of the Original Side of this Court, the Debt Settlement Board had no jurisdiction to entertain an application for the settlement of the debt or to issue a notice under Section 34, Bengal Agricultural Debtors Act. It is the propriety of this order that has been challenged before us in this appeal.

2. The learned Subordinate Judge in taking the view mentioned above relied upon a decision of this Court in Tarak Nath Kundu v. Panchanan Dutt : AIR1939Cal564 which held that a 'debt' as defined in Section 2, Clause (8), Bengal Agricultural Debtors Act, does not include a liability founded upon a decree of the High Court passed in its original jurisdiction. The provision of Section 34 of the Act can be attracted only when the proceeding before a civil Court relates to a debt, and it was held that a civil Court might ignore the notice under Section 34 of the Act if the proceeding before it was not in relation to a debt as defined in Section 2, Clause (8), Bengal Agricultural Debtors Act. Since this case was decided, there have been certain amendments of the provisions of the Bengal Agricultural Debtors Act, and Section 20, as it now stands, provides that it is for the Debt Settlement Board to decide whether the liability in a particular case amounts to a debt or not within the meaning of the Act. The result necessarily is that this jurisdiction of the Debt Settlement Board as provided for in Section 20, Bengal Agricultural Debtors Act, is exclusive, and under the law, as it stands, at present, a civil Court when it receives a notice under Section 34 of the Act is precluded from going into the question whether a particular debt is or is not a debt within the meaning of the Act. It must proceed on the footing that it is a debt unless and until the question is decided by the Debt Settlement Board itself: vide Derastulla v. Radha Krishna Dutt ('42) 46 C.W.N. 455.

Mr. Gupta appearing for the respondent has pointed out to us that subsequent to the order of the civil Court, the Debt Settlement Board itself has decided that the debt was not a liability which could be settled by it and has dismissed the application under Section 17, Bengal Agricultural Debtors Act. This certainly was done several months after the order of the Subordinate Judge was passed. As at the date when the Subordinate Judge refused to stay, there was no determination by the Debt Settlement Board, we are bound to say that the order of the Subordinate Judge is wrong and is liable to be set aside. As to whether the subsequent decision of the Debt Settlement Board is a relevant circumstance in connexion with the decision on the propriety or otherwise of the sale that has actually taken place we express no opinion whatsoever. We simply set aside the order of the Subordinate Judge, dated 29th April 1942. It would be open to the judgment-debtor to start appropriate proceeding to set aside the sale which took place subsequent to this order if he is so advised. We further point out that the order of the Subordinate Judge will be vacated only so far as it concerns the judgment-debtor 2 Mahadeblal Agarwala. The Subordinate Judge was perfectly entitled to proceed with the execution proceedings so far as the other judgment-debtors, who were not applicants before the Debt Settlement Board, are concerned. The result is that this appeal is allowed. The order of the Subordinate Judge, dated 29th April 1942, is set aside as indicated above. We make no order as to costs in this Court

Ellis, J.

3. I agree.


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