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HafizuddIn Mandal and ors. Vs. Mahim Chandra Ghosh - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Reported inAIR1945Cal399
AppellantHafizuddIn Mandal and ors.
RespondentMahim Chandra Ghosh
Excerpt:
- .....section 18 and the fact that by the power conferred by section 44 a board may of its own motion review a decision, it seems to me to be impossible to hold that the board had no jurisdiction to make the decision upon which the appellant relies. i am, however, further of the opinion that in any view of the case, the decision of the board could not be treated as a nullity; at the most it would be a wrong decision on a point of law reached in an irregular manner. the respondent ought, therefore, to have appealed against it instead of deciding to treat it as a nullity. i am not prepared to accept the view that it was a nullity and to hold that the appellant is to be deprived of his right to have the debt settled because of this wrong decision of the board which the respondent made no attempt.....
Judgment:

Henderson, J.

1. This appeal is by the judgment-debtor and it raises the question whether a Debt Settlement Board has jurisdiction to decide that a debt is barred by limitation. The respondent is not represented here and I am much obliged to Mr. Lahiri for the assistance he has given me as amicus curie. There is no dispute as to the facts. The debt in question is a sum of Rs. 160 payable on a decree obtained by the respondent. The board determined it at Rs. 160 and called on the respondent to produce a certified copy of the decree. Instead of doing that he produced what is described as a searching slip. The board examined it and then announced that the debt was barred by limitation. So nothing was due on it. The respondent filed the present execution ease. The appellant objected that execution could not proceed in view of the decision of the board. The Munsif upheld this objection but his decision has been reversed by the Subordinate Judge in the lower appellate Court. The decision of the learned Subordinate Judge was rather half-hearted. He did not go so far as to hold that boards have no jurisdiction to deal with limitation. He held, however, that they could not do so in the cases of debts based on decrees of civil Courts. He based his conclusion on the proviso to Section 18(1) which is in these terms:

Provided that a decree of a civil Court relating to a debt shall be conclusive evidence as to the existence and amount of the debt as between the parties to the decree.

In my judgment, this decision cannot be supported. The debt undoubtedly exists. The question the board was deciding was whether any remedy for recovery was still open to the creditor. In my opinion, the board must have jurisdiction to deal with limitation in all cases or in no cases. It is, therefore, necessary to consider whether these boards could decide that a debt is barred by limitation. It was conceded in all the Courts that the decision of the board in this case was absolutely wrong. The law of limitation is a matter of great difficulty to practising lawyers of long experience. Prima facie, it might seem strange, that questions involving this law should be relegated to the decision of laymen who know nothing about it. But however startling and alarming the result may be, I have reached the conclusion that the decision of the learned Munsif is correct. In Section 45(1) of the Act it is provided that the provisions of the Evidence Act and the Code of Civil Procedure shall not apply to proceedings before a board. There is no reference to the Limitation Act. It could hardly be contended that the provisions of that Act will not apply unless they are specifically extended. In view of the provisions of Section 3 I hold, not only that boards have jurisdiction to deal with this matter, but that an application made after the period of limitation must be dismissed although limitation has not been set up as a defence. It, is perfectly true that when a debtor files his application under Section 8 for settlement of his debts, this question does not immediately arise. But as soon as he and his creditor are brought face to face in the enquiry under Section 18, the board has to determine the question of the existence of the debt and that implies the determination of the further question whether it is barred -- unless the law of limitation has no application. Mr. Lahiri suggested that when once a board has determined a debt under Section 18 it has not power to alter the decision. But, in the present case, the question of limitation had not been decided when the board made its first decision. In view of the very wide connotation of the word 'doubt' in Section 18 and the fact that by the power conferred by Section 44 a board may of its own motion review a decision, it seems to me to be impossible to hold that the board had no jurisdiction to make the decision upon which the appellant relies. I am, however, further of the opinion that in any view of the case, the decision of the board could not be treated as a nullity; at the most it would be a wrong decision on a point of law reached in an irregular manner. The respondent ought, therefore, to have appealed against it instead of deciding to treat it as a nullity. I am not prepared to accept the view that it was a nullity and to hold that the appellant is to be deprived of his right to have the debt settled because of this wrong decision of the board which the respondent made no attempt to put right by the proper procedure. The appeal must accordingly be allowed, the order of the lower appellate Court set aside and that of the Munsif restored. I make no order as to costs.


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