Skip to content


Abinash Chandra Biswas Vs. Nakul Ruhidas and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1945Cal192
AppellantAbinash Chandra Biswas
RespondentNakul Ruhidas and anr.
Excerpt:
- .....2. then there is a second possibility, that the liability in question is, in the opinion of the board, a liability incurred before 1st january 1940, but in the opinion of the civil court incurred on or after that date. in such a case, if it is clear from the notice or otherwise that the board definitely formed the opinion that the liability was incurred before 1st january 1940 and in that view issued the notice, then the civil court is bound to stay the proceedings, although in its own view the liability was incurred on or after 1st january 1940. we must, however, guard ourselves against being misunderstood. if the court does not stay the proceedings in such a case, the court's proceedings are not without jurisdiction. the court would be merely committing an error in the exercise of.....
Judgment:

Rau, J.

1. This is a reference under Order 46, Rule 1, Civil P.C., by the Munsif of Bongaon. The question formulated by him is in the following terms: If a civil Court receives a notice under Section 34, Bengal Agricultural Debtors Act, in a case pending before it, the subject-matter thereof being a liability incurred after 1st January 1940, is it bound to stay the proceedings in view of the fact that the aforesaid liability is not a debt within the meaning of the said Act? The words 'liability incurred after 1st January 1940' are ambiguous. Incurred in whose opinion? There are three possibilities: First, where the liability is, in the opinion of the Debt Settlement Board itself, incurred after 1st January 1940, there is no difficulty. A notice issued in respect of a debt which in the opinion of the Board itself was incurred after the aforesaid date is plainly without jurisdiction. In such a case, therefore, the civil Court is not bound to stay the proceedings.

2. Then there is a second possibility, that the liability in question is, in the opinion of the Board, a liability incurred before 1st January 1940, but in the opinion of the civil Court incurred on or after that date. In such a case, if it is clear from the notice or otherwise that the Board definitely formed the opinion that the liability was incurred before 1st January 1940 and in that view issued the notice, then the civil Court is bound to stay the proceedings, although in its own view the liability was incurred on or after 1st January 1940. We must, however, guard ourselves against being misunderstood. If the Court does not stay the proceedings in such a case, the Court's proceedings are not without jurisdiction. The Court would be merely committing an error in the exercise of its jurisdiction. The civil Court has in every case jurisdiction to determine whether a notice which it receives under Section 34 is with or without jurisdiction. Therefore, if in a particular case it makes a mistake in the exercise of this jurisdiction and refuses to stay proceedings, the subsequent proceedings are not a nullity. They merely amount to an erroneous exercise of jurisdiction which will have to be corrected by recourse to the appropriate appellate or revisional authority.

3. We then come to the third possibility, where it is not apparent from the notice or otherwise that the Board applied its mind to the question of the date of the liability at all. In such a case if the civil Court is of opinion' that the liability was incurred on or after 1st January 1940, the proper course would be to draw the attention of the Board to this fact and to invite the Board to withdraw the notice. If thereafter the Board withdraws the notice, there is no difficulty. If, on the other hand, the Board persists in its notice, taking the view that the liability was incurred before 1st January 1940 (notwithstanding the Court's view to the contrary), the case falls within the second possibility which we have already discussed, that is to say, the civil Court is bound to stay the proceedings, but if it does not, the subsequent proceedings amount to an erroneous exercise of jurisdiction.

Biswas, J.

4. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //