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Baijnath Tamakuwalla Vs. Tormull - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1938Cal455
AppellantBaijnath Tamakuwalla
- do is that there should be a note on the proceedings by the registrar that a notice has been received under section 34 that proceedings in execution are stayed, and that a copy of this note should be sent to the executing court. as regards costs, the decree-holder will add those costs to his claim.8. there is one fact that i meant to mention in stating the facts. it is established or admitted that the applicant for stay was himself a member of the debt conciliation board in question. this adds, perhaps, to the picturesqueness of the situation, but that does not affect the legal question. i was also pressed with the fact that this debt had been incurred in the course of piece goods business. this, again, to my mind, does not affect the legal question. acts such as these which.....

Ameer Ali, J.

1. The applicant before me, Tormull Marwari, the defendant in suit No. 722 of 1936, was liable for the sum of some Rs. 7000 to the plaintiff in that suit, Baijnath Tamakuwalla, as a result of certain transactions in piece goods. The plaintiff obtained a decree in the High Court, a portion was paid and there remained a balance of Rs. 1,742-3.0. Execution was taken out in this Court and the decree was sent for execution to Dumka in Bihar where the defendant has real property. Thereupon, after attachment but before sale, a notice was received by this Court under Section 34 of Act 7 of 1936 and the effect of this notice was communicated to the Dumka Court. This notice of motion was taken out by the defendant and judgment-debtor, Tormull, for an order that the Sub-divisional Officer, Rajwabal, that is Dumka, be directed to stay further proceedings in Money Execution Case No. 11 of 1937, that an order be issued to the Registrar 'to recall the copies of the decree' etc., and for further relief in the shape of an injunction and so forth. Substantially, it is an application for stay. Now the respondent to this application, the decree-holder represented by Mr. K. P. Khaitan, argued the following points. No objection was made on the technical question of procedure. The first point argued was that the Act did not apply to the High Court decrees. There is no definition of Court' in the Act, and Mr. Khaitan relied, although this is not his principal point, on a decision of this Court on the appellate side, to the effect that decrees of the High Court of Calcutta are not affected by the Act. Mr. Panckridge J. took the view that they were, and I am of the same opinion. I cannot find in this Act anything which would legitimately exclude decrees of the High Court or other Courts not within the scheduled districts, from the effect of the Act. Mr. Khaitan's second point is a technical one, namely, that the execution having now gone to the Dumka Court which is outside Bengal, the Act cannot affect it. I agree that the Act cannot affect anything outside the province. Mr. Khaitan then argued, on various cases, that this Court having parted with the decree, the proceedings in the Dumka Court must be regarded as independent, that this Court has parted with control over them and should not interfere.

2. My own view is this that if under this Act, execution of the decree is either automatically stayed or to be stayed by an order, this Court should take such steps as are necessary to make that order or result effective. I do not think it is even necessary to recall the order but in the absence of any machinery or indication as to what should be done, it would probably be sufficient to record here that the execution has been stayed and inform the Dumka Court to that effect. The real question is one of jurisdiction. Has this Court jurisdiction to question the jurisdiction of the Board at Malda to deal with this particular case. There is, again, a minor question of procedure. If there is such a right or power in the High Court, when should it be invoked? Should it be invoked by way of mandamus by way of a declaratory suit, or, as here, by way of an application for stay? Should it be invoked after a decision by the Board as to its jurisdiction, or irrespective of such decision? Those points-have not been discussed and no technical objection has been taken to the matter being gone into by me in this application. I go therefore to the question of law. There have been decisions in this Court, both on the appellate side and on the Original Side, namely that of Panckridge J., to the effect that the Debt Conciliation Boards are vested with final and exclusive jurisdiction to decide their own jurisdiction, to decide in other words whether a particular person, either applying under the Act or being applied against under the Act, is what is called in the Act a 'debtor', but should much more properly be called an agriculturist. It is quite true however that the point argued by Mr. Khaitan was, if at all argued before the other learned Judges, not fully argued. I fully accept Mr. Khaitan's proposition of law that Courts having limited or subordinate or special' jurisdiction are not ordinarily unfettered in their own decisions, regarding the limits of their own jurisdiction; that ordinarily the supreme Court of the land has jurisdiction to decide whether the special Court or Court of limited jurisdiction has, or has not, rightly decided as to its own jurisdiction. But there is no inherent obstacle to a Court of special jurisdiction being vested with exclusive and final jurisdiction. That is purely a question for the Legislature.

3. I also agree with Mr. Khaitan that in order to vest the subordinate Court or Court of special jurisdiction with exclusive and final jurisdiction, the powers in question should be given to it in clear terms, subject to this, that it can also be a matter of inference where the indications are sufficient to justify such inference. I also agree that there is some sort of presumption against the grant of jurisdiction to the exclusion of the supreme Court of the land. Now with regard to this Act. First of all, as to the general nature of its provisions. The principle of it is this : There is a separate set of Courts created for the decision of civil claims against a certain class of persons: a certain class of prospective defendants. It is not exactly a subordinate system; it is a parallel system. I know of nothing precisely analogous to it. Possibly, the jurisdiction of Ecclesiastical Courts over clergy might form an analogy, and I am not sufficiently familiar with the history of the English law. It is a separate jurisdiction for a certain class of persons. All claims against agriculturists are withdrawn from ordinary Courts. They are not liable to defend themselves in the ordinary Courts and have no right to do so. They have no right to defend themselves in the ordinary Courts. It is a compulsory arbitration for all cases in which certain persons are claimed against. Coming to specific sections under Section 8, either the debtor or the creditor may apply for this special arbitration or jurisdiction. Under Section 17, the petition or application may be summarily dismissed. Under Section 20 which is the material section

if any question arises in connexion with proceedings before a Court under this Act, whether a person is a debtor or not, the Board shall decide the matter.

4. From Sections 38 to 40, it is obvious that no decision of the Board ordinarily is subject to question by the Courts. There is a separate system of appeal. The language of Section 38 is general 'any decision by a Board i.e. the phrase 'under this Act' is not included. Now Mr. Khaitan's point with regard to the construction of Section 20 is as follows: that between exclusive jurisdiction and no jurisdiction there is an intermediate state and that Section 20 merely gives the special tribunal an interlocutory power of deciding as to its own jurisdiction so as to avoid obstruction by immediate challenge to jurisdiction. He suggests this is the language of Section 20, that Section 20 is not appropriate to a grant of final and exclusive jurisdiction because on the principle of the English cases, proceedings before a Board under this Act' must be read to mean proceedings properly instituted within the jurisdiction of the Board under this Act; that it must not be read 'proceedings purporting to have been instituted under this Act'; that you must not read into the phrase 'The Board shall....decide the matter', 'The Board shall finally and exclusively decide the matter.'

5. In the same way he deals with the rather more difficult point under Section 35(1), which is the section immediately applicable to the present case:

No decree in a Civil Court shall be executed for the recovery of a debt included in an application under Section 8.

6. This is a debt included in an application. Mr. Khaitan contends that that has yet to be decided. It is an application purporting to be under Section 8, but it yet remains to be decided whether it has properly made under Section 8 and that this section, again, must be read as implying an application properly made under Section 8. Now I agree with Mr. Khaitan to this extent that if it was intended to give final and exclusive jurisdiction, the language of Section 20 might well have been stronger. The question is whether the matter should end there, or whether I think it clearly indicated from the Act as a whole, not the policy of the Act, but the structure and effect of the sections of the Act, that final and exclusive jurisdiction was intended to be given. I think it was. I repeat that the whole scheme of the Act is to withdraw a certain class of persons in so far as claims against them are concerned, from the ordinary Court. The Board has certainly power to decide initially whether the petitioner or respondent to a petition under Section 8, is such a person as is bound to go to this particular arbitration or special Court. Now in the case of this particular Act, that limited power alone, would, it seems to me, be insufficient to effectuate the purpose of the Act. If the Board is to decide initially and then that matter is to be subject to the decision of any other Court, it seems to me that the real object of the Act would be frustrated. Sections 34 and 35 mean, I think, that the moment a petition has been filed, purporting to have been filed under this Act by an agriculturist, unless the Board summarily rejects it under Section 17, the proceedings in other Courts must automatically be stayed. I think to decide otherwise would be to deprive the Act of its effect. I therefore consider it legitimate to infer that the Board is vested with final and exclusive jurisdiction.

7. I do not know whether the Board in this case have or have not decided the question under Section 20. I presume that they have decided it in the applicant's favour. As I said, no technical question of procedure has been argued. I am myself of the view that under this Act no application for stay is necessary having regard to the words of Section 35, but the matter having been raised and argued, I have to give my decision. As a matter of construction therefore, I am not prepared to differ from the decisions of Panckridge J. and this Court on the appellate side, and so far as the immediate matter before me is concerned, I hold that after a petition has been filed purporting to be filed under Section 8 and before the events specified in Section 35 (a) and (b) take place, this Court cannot, on interlocutory proceedings, decide that the petition should not have been presented. That is the more narrow ground upon which I decide this matter. But the decision involves a ruling as to the final and exclusive jurisdiction of the Boards. I do not propose to make an order as asked for in the notice of motion. All I propose to do is that there should be a note on the proceedings by the Registrar that a notice has been received under Section 34 that proceedings in execution are stayed, and that a copy of this note should be sent to the executing Court. As regards costs, the decree-holder will add those costs to his claim.

8. There is one fact that I meant to mention in stating the facts. It is established or admitted that the applicant for stay was himself a member of the Debt Conciliation Board in question. This adds, perhaps, to the picturesqueness of the situation, but that does not affect the legal question. I was also pressed with the fact that this debt had been incurred in the course of piece goods business. This, again, to my mind, does not affect the legal question. Acts such as these which break new ground, are apt to lead to interesting situations and results other than those anticipated or intended. This Act may have the beneficial effect of leading people to take greater interest in agriculture. It may also improve the business of kabuli moneylenders who do not for the recovery of their dues, have recourse to Courts of law.

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