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Tirtha Pada Dey and anr. Vs. Sk. KabiruddIn and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1943Cal142
AppellantTirtha Pada Dey and anr.
RespondentSk. KabiruddIn and ors.
Excerpt:
- .....the purpose of deciding the present case to say that section 36 implies that the small cause court judge had jurisdiction to go on with the matter. if the parties like to take the risk that the decree may be a nullity, they :are entitled to do so. finally, mr. mukherjee (stated that it is unsuitable that the debt settlement board and the civil court should inquire into the same matter. now it is quite true that the parties might have approached e the small cause court judge and asked him to keep the matter pending until the debt settlement board had reached a decision one way or the other. suffice it to say that the petitioner never made any such application. i am now concerned not with convenience of the parties but with a question of jurisdiction. the rule is discharged. in the.....
Judgment:
ORDER

Henderson, J.

1. This is a rule calling upon the opposite parties to show cause why a decree made by the Small Cause Court Judge of Serampore under the provisions of Section 36, Bengal Money-Lenders Act, should not be set aside. The rule was issued upon ground No. 1 which is to the effect that the new decree was passed without jurisdiction. In order to understand the point certain facts have to be stated. The petitioner obtained a decree in the Small Cause Court for Rs. 230 and Rs. 40 for costs on 16th November 1937. He took out execution proceedings on 24th January 1940. The opposite parties applied to a Debt Settlement Board on 17th February 1940. In the meantime, the execution proceedings went on and the petitioner purchased certain property for Rs. 299 on 24th May 1940. The opposite parties made an application under Section 36, Bengal Money-Lenders Act, on 22nd March 1941. The Small Cause Court Judge reopened the decree and passed a new decree on 15th September 1941.

2. The contention made in support of the rule is that the Small Cause Court Judge had no jurisdiction to deal with the application inasmuch as there was another application pending before the Debt Settlement Board. It is suggested that a debtor has no right to seek protection under both these Acts but must elect between them. Now, if the jurisdiction of the civil Court is to be excluded there must be some clear provision to that effect in the Bengal Agricultural Debtors Act. Mr. Mukherjee was unable to draw my attention to any section which would prevent the opposite parties from filing an application under the Bengal Money-Lenders Act. Section 33 is concerned only with suits against a debtor. Section 36 provides that in certain cases decree of the civil Court will be a nullity. It is not for me to decide now whether the decree against which this rule is directed is a nullity. Undoubtedly, it may be a nullity. It is enough for the purpose of deciding the present case to say that Section 36 implies that the Small Cause Court Judge had jurisdiction to go on with the matter. If the parties like to take the risk that the decree may be a nullity, they :are entitled to do so. Finally, Mr. Mukherjee (stated that it is unsuitable that the Debt Settlement Board and the civil Court should inquire into the same matter. Now it is quite true that the parties might have approached e the Small Cause Court Judge and asked him to keep the matter pending until the Debt Settlement Board had reached a decision one way or the other. Suffice it to say that the petitioner never made any such application. I am now concerned not with convenience of the parties but with a question of jurisdiction. The rule is discharged. In the circumstances of the case I make no order as to costs.


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