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Satyendra Mohan Ghose Vs. Nibaran Chandra Bose and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1937Cal392
AppellantSatyendra Mohan Ghose
RespondentNibaran Chandra Bose and anr.
Excerpt:
- .....by sale of the properties. on 27th november 1936, the petitioner made an application to the debt settlement board in the district of tippera established under the bengal agricultural debtors act under section 8 of that act. in that application the decretal debt in question was stated and included. thereupon the debt settlement board gave notice to the court under rule 73 of the rules framed under the act. on receipt of the notice the subordinate judge of the 3rd court before whom the execution case is pending sent a letter to the chairman of the debt settlement board asking for information, among other things, as to whether the board had obtained special powers under section 7 of the act. in reply the chairman stated among other things that the board had not got such special.....
Judgment:

S.K. Ghose, J.

1. This Rule raises a question of the construction of Section 34, Bengal Agricultural Debtors Act, Act 7 of 1936. The opposite parties obtained a decree upon a mortgage against the petitioner and in pursuance of that decree they applied for execution by sale of the properties. On 27th November 1936, the petitioner made an application to the Debt Settlement Board in the district of Tippera established under the Bengal Agricultural Debtors Act under Section 8 of that Act. In that application the decretal debt in question was stated and included. Thereupon the Debt Settlement Board gave notice to the Court under Rule 73 of the rules framed under the Act. On receipt of the notice the Subordinate Judge of the 3rd Court before whom the execution case is pending sent a letter to the Chairman of the Debt Settlement Board asking for information, among other things, as to whether the Board had obtained special powers under Section 7 of the Act. In reply the Chairman stated among other things that the Board had not got such special powers. On 18th December 1936, the Subordinate Judge passed the following order:

Heard pleaders of both parties. The Board's letter does not show that it has been empowered under Section 7 of the Act. The sale must therefore take place and can't be stayed.

2. In accordance with that order the sale took place. Against that order the present rule has been obtained. The opposite parties have filed a counter affidavit alleging among other things, that the application of the petitioner is intended to defraud creditors, that he is not a debtor within the meaning of the Bengal Act 7 of 1936, nor does the decretal debt in question come within the purview of that Act, and further that the Board not having been specially empowered under Section 7 of the Act and its award not being enforceable against the opposite parties it would be useless to stay the sale:

It is contended for the petitioner that the Court below acted without jurisdiction in refusing to stay the execution proceedings in spite of the notice that an application has been made under Section 8 of the Act in respect of the decretal debt. It is also contended that for the purpose of Section 34 of the Act it is immaterial whether the Board before which the application has been made, has been specially empowered under Section 7 or not.

3. Section 34 of the Act may be divided into two parts. The first part relates to the stage when an application under Section 8 has been made. The provision is that, where such an application has been made and the Board has given notice thereof to the Court, the proceedings before that Court shall be stayed. The second part refers to the stage when the application has been disposed of by the Board and the provision is that, where it has been disposed of in a certain way, the proceedings shall abate. In the present matter we are concerned with the first part and prima facie, the condition prescribed by that part has been fulfilled, namely that there is an application under Section 8, that such an application includes the decretal debt relating to which the execution proceedings are pending, and that the Board has given notice thereof to the Court. The point is whether it is for the Court to go into the question as to whether the Board is competent to deal with the application. It seems to us that such an interpretation cannot be put upon the words of Section 34. Under Section 7 of the Act the Local Government may invest the Board with certain powers under certain provisions mentioned in that section. But these sections are not exhaustive of the powers exercised by the Board, as for instance under Section 19(1), Clause (a), which provides that when any creditor agrees in respect of any debt owing to him to an amicable settlement with the debtor, the Board shall embody such settlement in writing. Further, where the Board finds that it cannot bring about an amicable settlement it may take action under Rule 78 of the rules framed under Section 55 of the Act and submit to the Collector a report of the facts and a recommendation as to the action to be taken on which it will be for the Collector to proceed under Rule 79. In any case it cannot be said that the Board has not the power to dismiss the application. It may do so under Section 17 of the Act or even apart from that section. Appeals are provided for under Section 40. It is contended for the opposite parties that it is for the civil Court at this stage to decide whether the Board has the power to consider the application under Section 8. If that is so, then under the second part of Section 34 also, when an order has been actually made by the Board, it would be the duty of the civil Court to go into the question as to whether that order had been properly made and thereby to usurp the function of the appellate authority under Section 40 of the Act. It seems to us that for the purpose of Section 34 it is not for the civil Court to decide whether the Board, before which the application under Section 8 is made, is specially empowered. The conditions of the first part of Section 34 having been fulfilled, the proceedings before the civil Court must be stayed until the Board has passed final orders on the application as contemplated by that section. The rule must therefore be made absolute with costs, hearing fee being assessed at one gold mohur.

Patterson, J.

4. I agree.


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