1. This Rule raises two questions under the Bengal Agricultural Debtors Act, both of which are of some importance. They arise out of the following facts.
2. On 29.9.1938, the petitioner and his co-sharers obtained a rent decree against the opposite parties and, in execution of that decree, the holding was sold on 14-2-1939, when it was purchased by the petitioner. Ho took delivery of possession in due course and claims to have settled the land with a third party. On 14-1-1943, only some of the opposite parties made an, application Under Section 87-A, Bengal Agricultural Debtors Act before the Special Debt Settlement Board at Allipore and of them, again, some dropped off subsequently. The petitioner resisted the application and one of the grounds upon which he did so was that no application Under Section 87-A was maintainable at the instance of some only of several joint debtors. The Board, being in doubt as to whether the application could be entertained, made a reference to the Special Appellate Officer Under Section 42, of the Act, By an order, elated 5-7-19-13, the Special Appellate Officer answered the question in the negative and directed that his opinion might be communicated to the Board. When, however, the application came up before the Board on 30-9-1943, the opinion of The Special Appellate Officer had not yet reached it, but meanwhile, the Government had issued a circular, being Memo. No. 1159 (25) T.B. 1, dated 11-8-1943, in which it was stated that an application Under Section 37-A might be made by any or all of the joint judgment-debtors. The applicants Under Section 87-A drew the attention of the Board to this circular and thereupon the Board recorded an order to the effect that the opinion of the Special Appellate Officer was no longer required. On the next date of hearing, 4-11-1943, the petitioner produced a copy of the order of the Special Appellate Officer but the Board held that in view of the Government circular, it was not necessary to refer to it and proceeded to make an award. The applicants Under Section 37-A however, moved 'the Special Appellate Officer for a review of his order, but their application was dismissed on 11-12-1943. The petitioner, on his part, appealed against the award to the ordinary Appelate Officer and then moved the District Judge under Section 40-A of the Act, but was unable to obtain any relief. The Ordinary Appellate Officer held that the Government circular would prevail over the opinion of the Special Appellate Officer and the award, being in acordance with the circular, was valid. The Additional District Judge, while expressing the same view, added that the Government circular correctly interpreted Section 37-A. Thereupon the present Rule was obtained.
3. In support of the Rule, Mr. Gupta contended that as regards both the questions, the view taken by the learned Additional District Judge was erroneous. He ought to have held that the Board was bound by the opinion of the Special Appellate Officer and, in any event, should have held that an application by only some of several joint judgment-debtors was not maintainable Under Section 37-A.
4. As regards the first question, the view contended for by Mr. Gupta is, in our opinion, correct. Section 42 of the Act provides that 'a Board may, if it thinks necessary, make a reference to The Appellate Officer, stating the question upon which his opinion, advice or direction is required and the Appellate Officer shall give his opinion, advice or direction as the case may be thereon as soon as possible.' It is true that the Section does not expressly say, as does Order 46, Rule 3, Civil P.C. or. Section 433, Criminal P.C., that the opinion of the authority to whom the reference is made shall be binding on the referring tribunal, but such intention, we consider, must be held to be implied. There could be no meaning in providing a means of resolving The Board's doubt and yet leaving the Board free to go on doubting and to doubt the correctness of the very opinion received upon a reference. The Section, which is intended to assist the Board can servo its purpose only if the Board is freed of the task of resolving its own doubt and if it is enjoined to act in accordance with whatever opinion it may receive from the Appellate Officer. It is further to be observed that the authority to whom the reference is to be made is the very person who will have to hear an appeal from the Board's order the ordinary Appellate Officer generally, and the Special Appellate Officer in cases coming under the proviso to Section 40(1). The question referred may well be one coming under the proviso and it could not possibly have been intended that the Board would be entitled to disregard the Special or the Ordinary Appellate Officer's opinion when that very officer might have to hear an appeal from the decision of the Board. Mr. Janah, who appeared on behalf of the opposite parties, contended that Section 42 mentioned three things, opinion, 1 advice and direction and a Board would be bound to act in accordance with the view of the Special Appellate Officer only in cases in which that Officer gave a direction to the Board, but not when he merely gave his advice or opinion. We do not think that this contention can be accepted. It would lead to the manifestly absurd position that in making the reference the Board would be entitled to say to the Appellate Officer whether he was to give advice, or opinion or a direction. In our opinion, Section 42 requires, though not by express terms but by necessary intendment, that the Board must act in accordance with the opinion received from the Special officer on a reference.
5. As regards the Government circular, it is hardly necessary to point out that it has no force of law, and in a case where instructions have been obtained from the Special Appellate Officer under the provisions of the Act, a Government Circulars interpreting the same question in a contrary sense, cannot override such instructions. The propriety of issuing executive instructions as to the meaning of an Act is itself doubtful; but whether it be proper or improper for a Board or an Appellate Officer to pay regard to such instructions, there can be no question that a District Judge, who is a Court, can legally take no notice of such a circular, not to speak of accepting it as laying down the law. In the present case, in so far as the learned District Judge held the opinion of the Special Appellate Officer to be incorrect on the ground that it was not in conformity with the Government circular, he was plainly in error and was allowing himself, in the exercise of his judicial functions, to be guided by the opinion expressed by Government in its executive capacity.
6. But having said so much, we must at the same time say that on the facts of the present case the question is of no importance. The question whether a, Board is or is not bound to accept the opinion of the Special Appellate Officer is of importance only so long as the case is before the Board or, it may be, before the Appellate Officer. When the case reaches the District Judge or, this Court, the question ceases to be of importance, because the order of the Board cannot be up held simply for the reason that it is in accordance with the opinion of the Special Appellate Officer, nor can it be reversed on the ground that it is not. The proper enquiry at this stage is whether the decision of the Board is in accordance with the Act and not whether it is Jin accordance with the opinion of the Special Appellate Officer. Even if it be in accordance with such opinion, it must be set aside if it is contrary to the provisions of the Act. We are accordingly of opinion that although the petitioner is right in contending that the Board was wrong in disregarding the opinion of the Special Appellate Officer, he gains nothing by establishing that error.
7. As regards the second question, it is undoubtedly one of some difficulty, but on the special facts of the case it is not necessary to give general answer. But since the matter was argued, we might express some opinion. Mr. Gupta conceded that there was nothing in the express language of Section 37A which required that in a case of a joint debt or the property sold being the joint property of several debtors, an application could only be made by all of them acting together. He relied only on a certain anomaly, which according to him, would result, if some only of several joint debtors were allowed to make an application. As a matter of language, the words 'when any immovable property of any person has been sold. such person' with which Section 37-A begins certainly cover one of several joint judgdment-debtors whose property has been sold in execution, When the application succeeds and an award Is made, the action to be taken by the civil Court is provided for in Sub-section (8) which begins with the words, 'the debtor may present a copy of the award. to the civil Court. at whose order the property was sold.' The word 'debtor' means, as Clause (b) of Sub-section (7) explains, the applicant in whose favour an award has been made; but Sub-section (8) proceeds to say that the Court shall direct that the sale be set aside and the debtor be restored to possession of the property. If such an order is made, the position which results is that since The Section says nothing about this, title apparently reverts to all the original owners, although the application might have been made by only some of them; but possession is restored only to the applicant or applicants. So far there is no anomaly. Both the applicants and the non-applicants benefit. The applicants who are and remain only owners of a portion of the property, are restored to the possession of the whole, while the non-applicants have the sale set aside without having to pay any part of the debt. We see nothing in the Section which makes it impossible to say that this is exactly what is intended, for the obvious object of putting the applicants, who take the burden of the whole debt, in possession of the property is to enable them to pay off the debt out of its usufruct as intended by Section 37-A(5)(a). The non-applicants cannot complain of any prejudice, for nothing is taken away from them and the property of which possession is restored to the applicants really comes at the relevant time, from decree-holder auction-purchaser. The only apparent anomaly is created by Sub-section (9) of the Section which restrains only the applicants from alienating the property till the debt is paid off. It might be said that since the non-applicants have by that time become co-sharers and since they are in no: way restrained, they might transfer their shares to third parties and thereby defeat the provisions of the Section altogether.
8. So far as we can see no anomaly is created even by Sub-section (9) and there is nothing oven there to suggest that an application may not be made by one or some of the debtors, The non-applicants, if title had reverted to' them, may alienate their shares, but neither they, nor their transferees can obtain possession so long as the debt is not paid off. For that period, the property must remain in the possession of the applicants under the very terms of the Section. When the debt is paid off, a question may well arise, as to whether the applicants will be entitled any longer to retain their exclusive possession. It will then have to be decided whether the Section really revives the title of even the non-applicants and in effect makes a gift to them of their shares, although a gift of a deferred character, or whether title really vests in the applicants alone, although it is not expressly so said.
9. This larger question need not be finally answered by us in the present case. Here the decree was a decree for arrears of rent and the sale took place on 14-2-1989. The Bengal Agricultural Debtors (Amendment) Act, 1940, came into force on 2-5-1940. By Sub-section (1)(b)(iii) of Section 37-A it is provided that one of the conditions which an application under this Section must satisfy is that the sale was held 'before the commencement of the Bengal Agricultural Debtors (Amendment) Act, 1940, in the case of a debt for arrears of rent in respect of which such person was liable jointly with any other persons. 'Such person obviously means the applicant. The clear implication is that in a ease where the decree was a joint decree for rent and the sale took place before 2-5-1940, one of several joint judgment-debtors may make the application contemplated by the Section. Mr. Gupta contended that this Sub-clause only 'removed a bar, because apart from the Section, one of several joint judgment-debtors under a rent decree could not at that time make an application under the Act. This does not seem to be correct. It was the Amendment Act of 1940 which added Sub-section (3) to Section 9. Under the latter provision, a debtor, liable with other persons for a debt for arrears of rent, may make an application Under Section S provided he takes up the burden of the entire debt. In our opinion, having regard to the provisions contained in Section 37-A(1)(b)(iii), in a case where a decree was a joint decree for arrears of rent and the sale took place before 2-5-1940, as in the present case, one of the joint judgment-debtors whose property was sold in execution may make an application. The view taken by the learned District Judge on the second question was, therefore correct.
10. For the reasons given above, the rule is discharged. We make no order as to costs.
11. I agree.