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Gopal Chandra Haldar Vs. Nepal Chandra Mondal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1948Cal81
AppellantGopal Chandra Haldar
RespondentNepal Chandra Mondal and anr.
Excerpt:
- .....bagerhat special board. sometime subsequent to the presentation of this application the rajnagar debt settlement board was constituted and on the recommendation of the bagerhat special board the application was transferred on 9-1-1940, to the rajnagar debt settlement board, for disposal. the rajnagar debt settlement board took evidence and came to the conclusion that though the bonds were simple mortgage bonds, in fact possession of the mortgaged property was delivered to the mortgagee; and they further found that opposite party no. 2 was merely a benamidar for opposite party no. 1. they accordingly took the two debts together and determined that the total amount due under these bonds was rs. 685-10-0. the creditors appealed and their appeal was heard by the appellate officer. the.....
Judgment:
ORDER

Lodge, J.

1. This rule arises out of an order passed by the District Judge of Khulna under Section 40A, Bengal Agricultural Debtors Act, 1935. The material facts giving rise to the present rule are not disputed and they are as follows: The petitioner before me borrowed Rs. 1200 in Baisakh 1337 B.S. and executed a simple mortgage bond in favour of opposite party No. 1. In the month of Chaitra 1341 B.S. he borrowed Rs. 470 and executed a second mortgage in favour of opposite party No. 2, the son of opposite party No. 1. Thereafter the petitioner before me presented an application under Section 8, Bengal Agricultural Debtors Act, 1935, before the Bagerhat Special Board. Sometime subsequent to the presentation of this application the Rajnagar Debt Settlement Board was constituted and on the recommendation of the Bagerhat Special Board the application was transferred on 9-1-1940, to the Rajnagar Debt Settlement Board, for disposal. The Rajnagar Debt Settlement Board took evidence and came to the conclusion that though the bonds were simple mortgage bonds, in fact possession of the mortgaged property was delivered to the mortgagee; and they further found that opposite party No. 2 was merely a benamidar for opposite party No. 1. They accordingly took the two debts together and determined that the total amount due under these bonds was Rs. 685-10-0. The creditors appealed and their appeal was heard by the appellate officer. The appellate officer directed that the two debts be considered separately and separately determined, and remanded the application to the Rajnagar Debt Settlement Board for further determination of the debts under Section 18 of the Act. Thereafter, the Rajnagar Debt Settlement Board on 16-2 1941, determined the two debts separately and also gave instructions with regard to the settlement of the debts, but they omitted to draw up a formal award and sign the same as provided in Section 25 of the Act.

2. There was no appeal against this order. There was apparently no application to the Rajnagar Board for review of the order; but on 6-11-1941, the Sub-Divisional Officer of Bagerhat transferred the application under Section 39 (1) of the Act to the Ujalkur Debt Settlement Board for disposal. Thereafter the Ujalkur Debt Settlement Board took evidence and again determined the debts of the present petitioner under Section 18 of the Act The present petitioner applied to the Ujalkur Debt Settlement Board for review of their order and the application for review was allowed. On reconsideration of the matter, the Ujalkur Debt Settlement Board again on 29-11-1944, made the same order, which they had previously made and which they had been asked to review.

3. The present petitioner moved the appellate officer in appeal, and before the appellate officer he contended that inasmuch as the debt had been determined under Section 18, Bengal Agricultural Debtors Act by the Rajnagar Debt Settlement Board, the Ujalkur Debt Settlement Board had no jurisdiction to reopen the matter and again determine the debts. The learned Appellate Officer rejected this argument in these words:

The argument that the Ujalkur D.S. Board has no jurisdiction to decide the case is not tenable as under Section 39 (1), the Collector whose power is vested in the Section D.O. can transfer a case from any D.S. Board to any other D.S. Board within his jurisdiction.

On the merits the appellate officer was of opinion that the order of the Ujalkur Debt Settlement Board was justified.

4. The present petitioner then moved the District Judge in revision under Section 40A of the Act, and the District Judge rejected his application. Although objection was taken before the District Judge that the Ujalkur Debt Settlement Board had no jurisdiction to determine the Debts afresh under Section 18, there is no reference in his order to this argument.

5. The only, question urged before me is the question whether in the circumstances the Ujalkur Debt Settlement Board had jurisdiction to ignore the determination of the debts arrived at by the Rajnagar Debt Settlement Board and to investigate the matter de novo and come to their own independent decision on the matter In support of the decision of the Board my attention has been drawn to Section 89 (2), Bengal Agricultural Debtors Act. Section 39 (2) reads:

A board to which an application is transferred under Sub-section (1) may continue the proceedings in connection with the application from the stage which has been reached when the application is transferred.

6. It has been argued that this means that the board has a discretion either to continue the proceedings from the stage already reached, or to go back to any earlier stage or even to start proceedings de novo. It may be conceded that the language of this sub-section does confer upon a Board a certain discretion; for instance, a transferee board may reasonably either act on evidence already recorded by the transferor Board or may take all evidence anew. It does not seem to me to follow that a transferee Board has the power, by virtue of this sub-section to ignore all the proceedings taken before the transferor Board. Section 18 (4), Bengal Agricultural Debtors Act provides as follows:

When the board has determined under sub-section (2) the amounts of the principal of debt due from a debtor and of the arrears of interest due thereon, the decision of the board in this respect shall not be questioned in any civile Court or in any manner other than that provided in this Act.

7. It seems to me that this means that the decision of the Board under Section 18 (2) as to the amount of the principal of a debt and of the arrears of interest due thereon, is final except in so far as that decision may be altered under the provisions of the Act. The Act of course provides for review by a board of its own order under Section 44. It provides for appeal under Section 40, and it provides for revision under Section 40A. In my opinion, the meaning of Section 18 (4) is that the decisions under Section 18 (2) by any board having jurisdiction as to the amount of the principal of a debt and of the arrears of interest due thereon is final unless that decision is modified in appeal or in revision or unless that decision is modified by a review made under the provisions of Section 44.

8. I am unable to hold that the provisions of Section 39 (2) mean that Section 18 (4) has no application when a case is transferred from one board to another. If the argument were accepted that by virtue of Sub-section (2) a board may on receiving an application on transfer, restart the case de novo whatever had been the decision of the transferor board, the anomalous result would follow that even the decision of an appellate officer or a revisional officer in respect of a determination under Section 18 (2) could be ignored by a transferee Board. This extraordinary result would be possible viz. if the appellate officer who is ordinarily the Sub-Divisional Officer gave a decision; and if his decision were modified by the District Judge under Section 40A he could at once transfer the application to another Board and enable that Board to ignore the decision of the revisional authority. I am unable to believe that this was the intention of the Legislature or that this is the meaning of Section 39 (2). I am therefore of opinion that Section 89 (2) does not empower a transferee Board to ignore a decision under Section 18 (2) of the Board, from which the application is transferred. The question whether the transferee Board can or cannot review the order of the original Board is one which it is not necessary for me to decide.

9. In the present case, the transferee Board did not purport to act under Section 44 of the Act when it first determined the debts under Section 18 (2) nor is it pretended that at the time when it first exercised its jurisdiction it complied with any of the rules made under the Act with regard to review. As I have stated above, the question whether they have the power to review the order passed by the original board is not free from difficulty, inasmuch as the section merely provides that a Board may review its own orders, and does not entitle by express words any Board to review an order passed by another board. As the order o the Rajnagar Debt Settlement Board passed on 18-2-1941, was not modified in review under the provisions of Section 44 of the Act and as there was no appeal from that order that order should be taken to be final and the proceedings of the Ujalkur Debt Settlement Board ignoring that order and starting their investigation de novo must be regarded as being without jurisdiction. In my opinion, the learned appellate officer was clearly wrong in his decision, and the learned District Judge failed to consider this very material question when he examined the matter under Section 40A, Bengal Agricultural Debtors Act.

10. This rule is accordingly made absolute. The order of the District Judge is set aside and the order of the appellate officer is also varied as follows:

11. The appeal to the appellate officer must be allowed and the application remanded to the Ujalkur Debt Settlement Board or its successor with directions to accept the determination of the debts arrived at by the Rajnagar Debt Settlement Board on 18-2-1941, and to proceed further in the matter from that stage. The rule is made absolute with costs-the hearing fee being assessed one gold mohur.


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