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Rahim Bux Talukdar and anr. Vs. Kanakalata Choudhurani - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Reported inAIR1947Cal255
AppellantRahim Bux Talukdar and anr.
RespondentKanakalata Choudhurani
Cases ReferredSecy. of State v. Mask
Excerpt:
- .....the decree into execution, but was met by the appellants with an application made to the kazipur debt settlement board under the bengal agricultural debtors act. that board, in due course, served the executing court with a notice under section 34, as a result whereof the proceedings were stayed. the board subsequently gave its decision on the application and decided that nothing was due to the respondent under the decree.3. an appeal from the decision of the board, an application in revision to the district judge and a further application to this court, all failed, the last one having been disposed of by henderson j. on 4-1-1945, by his decision in civil rule no. 1519 of 1943.4. the respondent next commenced another execution case with respect to the same decree and was this time met.....
Judgment:

Chakravartti, J.

1. This appeal is by the judgment, debtors and raises a question of some importance under the Bengal Agricultural Debtors Act.

2. The material facts are the following : The respondent Kanaklata Choudhurani obtained OH 18-7-1933, an instalment decree for Rs. 1002 against the appellants in Money suit No. 26a of 1933 of the Court of the Second Munsif of Serajganj. She put the decree into execution, but was met by the appellants with an application made to the Kazipur Debt Settlement Board under the Bengal Agricultural Debtors Act. That Board, in due course, served the executing Court with a notice under Section 34, as a result whereof the proceedings were stayed. The Board subsequently gave its decision on the application and decided that nothing was due to the respondent under the decree.

3. An appeal from the decision of the Board, an application in revision to the District Judge and a further application to this Court, all failed, the last one having been disposed of by Henderson J. on 4-1-1945, by his decision in civil Rule No. 1519 of 1943.

4. The respondent next commenced another execution case with respect to the same decree and was this time met with an objection under Section 47 Civil P.C., which was placed on two grounds. It was contended that by reason of the previous decision of the Board which was to the effect that nothing was due to the respondent under the decree and also by reason of the principle of res judicata, the present execution case was barred. Both these contentions have been repelled by both the Courts below and the present appeal is directed against that decision.

5. In order to appreciate fully the contention raised under the Bengal Agricultural Debtors Act, the facts require to be set out in some detail. It appears that in the application which the appellants made to the Debt Settlement Board, they mentioned only a single creditor, namely, the respondent, and while they mentioned the decree, they at the same time stated that nothing whatever was due from them thereunder. The case made by them in the application was to the following effect. They alleged that in the year 1336 B.S. about 74 bighas of land, belonging to the husband of the respondent, had been alluviated and thereupon the tenants were invited to come forward to take settlement of the alluviated lands. The appellants, as headmen of the village responded to this invitation and an agreement was concluded with the landlord, by which it was stipulated that the appellants would pay a selami of Rs. 1258 and a further amount of Re. 1 as a fee on the application and a settlement of all the alluviated lands would be granted to them. In accordance with that agreement, so it was alleged, a sum of Rs. 609 was paid in cash and for the balance of Rs. 650 a hand-note was executed in the name of the respondent. The actual settlement, however, never materialised, for before possession of the lands could be taken, or a formal settlement granted, they went under water again in 1337 B.S. Yet, however, an officer of the zemindar filed a suit against the appellants upon the hand, note and when they were about to file a written statement, they were persuaded to desist on the assurance that if they did not contest the suit or create trouble but suffered a decree, settlement of other khas lands would in due course be made with them. By reason of this assurance, the appellants were dissuaded from contesting the suit and an instalment decree, the decree now sought to be executed, was ultimately passed. The appellants' further case was that even after the decree, they had paid three sums of Rs. 325, Rs. 50 and Rs. 45.

6. The application made before the Board was disposed of by an order dated 6th September 1942. It is a very long order, but it can be summarised correctly by saying that the Board virtually accepted the story of the appellants in its entirety. The decision of the Board was that the creditor was not entitled to get anything from the appellants, inasmuch as she had already got a total amount of Rs. 1029 which was made up of the payment made before the agreement for the settlement of the alluviated lands and the payments made subsequently to the decree. The Board went on to say that in the circumstances it was not necessary to determine any debt under Section 18, nor necessary to make an award under the provisions of Section 19(2), Bengal Agricultural Debtors Act. It is this decision which is said to constitute a bar to the prosecution of the present execution case.

7. Of the two objections raised by the appellants before the Courts below, one was disposed of rather briefly and, in my view, with good reason. The objection on the ground of res judicata was founded upon the judgment delivered by Henderson J. in the civil rule to which I have already referred. A reference to that judgment shows, however, that his Lordship decided nothing whatever beyond that the appeal before the appellate officer was not barred by time. His judgment contains nothing which might constitute res judicata either in favour of or against the appellants.

8. A more serious question, however, is raised by the other contention put forward on behalf of the appellants. The lower appellate Court has disposed of it on the authority of the decision of Mukherjea and Ellis JJ. in the case in Sri Kanta Kamar v. Atul Krishna : AIR1945Cal214 . It was held in that case that an application before a Debt Settlement Board, in which the applicant did not admit his liability for any debt whatsoever to any person, even though he might specify a debt, at the same time denying any liability thereunder, was not maintainable by the Board at all and that any order passed on such an application was altogether void. The lower appellate Court pointed out that the facts of the present case were exactly similar to those on which this Court pronounced in the case to which I have referred above. Here too, the applicants before the Board mentioned a single debt and here too they added that under that so-called debt, nothing was due from them at all. In the circumstances, there could be no question that the principle laid down by Mukherjea and Ellis JJ. did apply and the lower appellate Court applied it.

9. It has been contended before me by Mr. Lahiri, who appears on behalf of the appellants, that in deciding the present case on the supposed authority of the decision in Sri Kanta Kamar v. Atul Krishna : AIR1945Cal214 referred to above, the lower appellate Court had been in error, for both that decision and the earlier decision of Henderson J. in the case in Biraja Mohan v. Abaninath Pandit : AIR1942Cal227 were concerned with the interpretation of Section 13(2), Bengal Agricultural Debtors Act. They contained no interpretation of Section 18(1) which was the material section here and the language of which was materially different from the language in which Section 13(2) was expressed. Mr. Lahiri contended that under Section 18, the Board was authorised, and indeed was bound, to determine a question as to the existence or amount of any debt, if any such question was raised, and a decision on the powers of the Board under Section 13(2) which related to another stage of the proceedings and conferred the powers by a different form of the words, could not possibly govern a case under Section 18(1).

10. I do not think that the cases to which I have referred, and particularly the case in Sri Kanta Kamar v. Atul Krishna : AIR1945Cal214 could be distinguished in the manner in which Mr. Lahiri attempted to distinguish them. In a way, the later decision goes beyond what Henderson J. laid down in the earlier case reported in Biraja Mohan v. Abaninath Pandit : AIR1942Cal227 . The view of Henderson J. was that if, acting under Section 13(2), a Board recorded an order that the amount due to a particular creditor from the debtor was nil, it was not an order under Section 13(2) at all and could have no legal effect. The Division Bench, on the other hand, held that if the application before the Board was a competent application, then the mere fact that an order recorded by the Board under Section 13(2) might be an erroneous order, would confer no jurisdiction on the civil Court to disregard it, but, on the other hand, if the application itself was not maintainable, then the order would fall to the ground, not for the reason that it was an erroneous order under the section but for the reason that the application upon which it was made was not maintainable at all. It would be useful, if I set out in this connection the actual words of their Lordships. This was what they said:

We agree with Mr. Bose that if the Debt Settlement Board was competent to entertain an application presented to it by the debtors and deal with it in accordance with the provisions of the Bengal Agricultural Debtors Act, the mere fact that it made a wrong order under Section 13(2) of the Act would not entitle a civil Court to ignore the proceedings before the Board and treat the order as a nullity; the illegal or wrong order must be set aside within proper time and by a proper proceeding before the Appellate Officer; and this the creditor must be deemed to have failed to do in the present case.

We hold, however, that the application presented by the debtors could not be regarded as one for settlement of debts as contemplated by the Bengal Agricultural Debtors Act, and the Debt Settlement Board had no jurisdiction to entertain such an application or proceed with it. It is only a debtor that can make an application for settlement of his debts under Section 8, Bengal Agricultural Debtors Act. He might not admit the claims of his creditors in their entirety or his case might be that the dues of some of his creditors were fully satisfied and with regard to some only his liability still remained; but it is necessary, before he can invoke the jurisdiction of the Debt Settlement Board, that he should admit that there is still a debt owing by him to somebody. If he denies the existence of a debt al together no petition for settlement of debts could, in our opinion, possibly be made....

There can be no doubt whatever about the meaning of those words, nor any question that their Lordships proceeded, not upon any interpretation of Section 13(2) of the Act, but upon the fundamental ground that an application by a person who himself stated that he did not owe any debt to anybody, was not an application which could possibly be made under the Bengal Agricultural Debtors Act, or possibly be entertained by a Board, if made to it.

11. Although it is not strictly necessary for the purpose of this case, I may point out that there is one other matter with respect to which the views of the Division Bench and of Henderson J. in the case I have already cited are not entirely identical. Dealing with the question as to what kind of application would be a proper application under the Bengal Agricultural Debtors Act, Henderson J. observed:

It is impossible for a debtor to file an application stating that one of his debts is nil.

As has been seen already from the passage I have above quoted, in the view of the Division Bench there can be an application in which the debtor admits the existence of some debts and while mentioning some others claimed as debts he states that he does not admit any liability thereunder. The latter view seems to me to be in accordance with the form prescribed for an application under Section 8 which is form No. 1. Column 8 of schedule A of that form is 'total claimed by the debtor' and column 9 is 'amount (if any) admitted by the debtor.' It is quite clear from this form, which has been prescribed under Rules 14, 31 and 32, and has statutory authority, that the Act does contemplate that with respect to some of the debts the debtor can say what amount he admits to be due and there is no reason why he should not be entitled to say that he admits nothing as payable. 'Amount (if any) admitted by the debtor' may well be nil, as the words 'if any' clearly show. Only what an applicant cannot do is that he cannot say that he is nobody's debtor at all. In my opinion, the decision of the Division Bench to which I have referred concludes the present appeal against the appellants and I must hold that the objection taken by them before the Courts below was rejected rightly.

12. There is, however, another way in which the same result may be reached. Referring to Section 18 upon which the appellants found their contention, it will be seen that the section contains a proviso to the effect 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. It is perfectly clear that while the Board is given a general authority to determine any question that may be raised as to the existence or the amount of any debt, there is a limitation imposed upon that authority so far as decrees of civil Courts are concerned. They are to be, in the words of the statute, conclusive evidence as to the existence and amount of the debt and, in my view, the words at least mean that the Board is not entitled to hold that a debt of the amount mentioned in the decree did not exist on the date of the decree. I am prepared to concede that if, subsequently to the decree, certain payments have been made, the Board would be entitled, in spite of the somewhat absolute form of the words in which the proviso is ex pressed, to give the judgment-debtor credit for such payments. But the Board could, on no account, go behind the decree and say that some payments had been made by the debtor to the creditor on account of the debt before the decree land that the decretal amount should be scaled 'down accordingly. Mr. Lahiri contended that what the, Board had in the present case done was not to violate the proviso in any manner, but merely to hold that as against the liability owing from the appellants to the respondent, as evidenced by the decree, there was a liability owing from the respondent to the appellants by reason of the payments received in connection with the agreement for a settlement which was never granted. In my opinion, the order of the Board cannot possibly be justified by this form of reasoning. If the previous payments are alleged to be payments connected with the very transaction upon which the Court adjudicated, then, it seems to me, it would not be open to the Board to act against the adjudication, whether directly or indirectly, and give the debtor credit for payments which the civil Court had denied him. As independent liability owing by the creditor to the debtor can certainly be taken into account, but the present case is not one of that character.

13. In my opinion, therefore, taking the decision of the Board as it is, it was clearly one in contravention of the proviso to Section 18(1) and the civil Court would be entitled to disregard it in spite of the provisions of Sub-section (4). As was pointed out by the Privy Council in Secy. of State v. Mask & Co. , even if the jurisdiction of a civil Court be explicitly or impliedly excluded by a special Act, the civil Court will have jurisdiction to examine into cases where the provision of the special Act had not been complied with.

14. Looking into the matter from still another point of view, it seems to me that Mr. Lahiri's clients are equally bound to fail for a third reason. They could only set up the decision of the Board as a plea under one or other or all of three sections contained in the Bengal Agricultural Debtors Act, namely, Sections 33, 34 and 35. 'When the provisions of these sections are examined however, it will be found that the language of neither of them extends so far as to reach the present case. Section 33 forbids the civil Court to entertain any suit or application or proceeding in respect of any debt in which any amount is payable under an 'award'. Section 35 similarly enacts that no decree of a civil Court shall be executed for the recovery of a debt included in an application under Section 8 until, to quote only the relevant portion, 'an award in which such debt is included has ceased to subsist under Sub-section (5) of Section 29.' Section 34 again provides that when a notice under that section has been served, the proceedings before the civil Court shall be stayed until the Board has dismissed the application or made an award and if it includes the debt in its award or decides that it does not exist, the proceeding before the civil Court, so far as it relates to such debt, shall abate. In the present case, there was up, notice under Section 34 during the present execution proceeding and the section would seem to be outside the case altogether. But Mr. Lahiri con-tended, on the authority of Henderson J.'s decision in the case to which I have already referred, that if the Board's decision was of no legal effect, the proceeding before it was still pending. Even if that be so, the proceeding in the civil Court at which the notice under Section 34 struck, was no longer pending and the present execution case is a different proceeding altogether.

15. But a more fundamental answer to Mr. Lahiri's contention is that the proceeding before Board was ab initio void and another answer is that unlike the case before Henderson J. the present case before the Board was actually terminated by what was called an award. That being so, the only sections which are material are Sections 33 and 35 and the only provision therein contained which is relevant is the provision which prevents a civil Court from acting in the face of an award made by a Debt Settlement Board. An award, however, is defined in Section 2(4) as 'an award as made by a Board under Sub-section (2) of Section 19 or Sub-section (6) of Section 22.' The rest of the definition is not material. When one next refers to Section 19(2), one finds that it refers to the terms of a settlement of a debt under Sub-section (1) and Sub-section (1) again contemplates debts actually found payable. Similarly, Section 22(6) speaks of an order passed under Sub-section (1) of the same section and Sub-section (1) again speaks of debts actually found payable. The Act does not contain any provision which entitles the Board to make a declaration in the case of a single debt that nothing is payable under it, nor does it entitle the Board to make an award in respect of debts which it finds not to be due and, significantly, the two sections, which I have quoted, only mention an award made by a Board as a bar, but do not further say that a decision under Section 18(1) will also be a bar. In the present ease, the record contains two sheets of paper which are said to contain a certified copy of a certain order passed by the Board and called an award. A reference to the contents of that order shows that the Board therein made a declaration that the single debt to which the application before it related did not exist and the creditor was entitled to nothing in respect thereof. Clearly, the Act confers on the Board no authority to pass an order of this character, or at least to call it, an award, and whether it is rightly so called or not, an order of this type does not constitute a bar to the prosecution of any proceedings in a civil Court, as is contemplated by Sections 33 and 35 of the Act.

16. In my view, therefore, the appellants cannot resist the prosecution of the execution case on the ground of the alleged previous decision of the Board and, from whichever of the three points of view I have indicated above, their objection may be looked at, it must be held to be unsound.

17. In the result, the appeal fails, and I mate no order as to costs in this Court.


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