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Nani Bai Baishyani W/O Lakshmi Chand Agarwalla Vs. Maliram Agarwalla and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1944Cal161
AppellantNani Bai Baishyani W/O Lakshmi Chand Agarwalla
RespondentMaliram Agarwalla and anr.
Cases ReferredRevn. No.Jadu Mandalani v. Sm. Sarojini Choudhurani Civ. Revn. Case No.
Excerpt:
- .....act, at the instance of the decree-holder. the court has directed the decree-holder to move the debt settlement board at shikarpur which issued the notice to vacate the order. it appears that the execution proceedings with which we are concerned were first delayed by an application of the judgment-debtors to the debt settlement board at durgapur. that application was dismissed and on appeal, the sub-divisional officer as appellate officer stated that it was absolutely clear that the debtor appellants had been attempting to use the provisions of the act with a view to defeat the creditors. he accordingly upheld the decision of the durgapur debt settlement board. thereafter the judgment-debtors filed a petition under section 36, bengal money-lenders act, which in turn was dismissed......
Judgment:

Roxburgh, J.

1. This is an appeal against an Order of the Subordinate Judge, Nadia, refusing to ignore a notice under Section 34, Bengal Agricultural Debtors Act, at the instance of the decree-holder. The Court has directed the decree-holder to move the Debt Settlement Board at Shikarpur which issued the notice to vacate the order. It appears that the execution proceedings with which we are concerned were first delayed by an application of the judgment-debtors to the Debt Settlement Board at Durgapur. That application was dismissed and on appeal, the Sub-divisional Officer as Appellate Officer stated that it was absolutely clear that the debtor appellants had been attempting to use the provisions of the Act with a view to defeat the creditors. He accordingly upheld the decision of the Durgapur Debt Settlement Board. Thereafter the judgment-debtors filed a petition under Section 36, Bengal Money-lenders Act, which in turn was dismissed. Next a notice was obtained under Section 34, Bengal Agricultural Debtors Act, staying the proceedings-that notice having been apparently issued as the result of a petition of a creditor before the Durgapur Debt Settlement Board. The proceedings were stayed. Eventually the notice was withdrawn on receipt of the proceedings of the Appellate Officer, Now gong, who rejected the petition filed by the judgment-debtors to that officer. The last stay of proceedings has been at the instance of another creditor-this time on an application made to the Debt Settlement Board at Shikarpur and the decree-holder's attempt to have the second notice under Section 34, Bengal Agricultural Debtors Act, ignored has failed. Hence this appeal.

2. In our opinion, the Order of the learned Subordinate Judge is correct and the proper remedy of the decree-holder in the ease is to move the Shikarpur Board to have the notice cancelled on rejecting the application of the creditor on the ground that such application is not maintainable under the provisions of Section 8 (2), Bengal Agricultural Debtors Act. The question whether a civil Court may ignore a notice received under Section 34 of the Act on the ground that the application on which such notice is passed is not maintainable before the board has been considered by this bench in an unreported ease-civ. Revn. No.Jadu Mandalani v. Sm. Sarojini Choudhurani Civ. Revn. Case No. 557 of 1943 and it was held that the Debt Settlement Board has jurisdiction to decide the question as to the maintainability of the application, and consequently, the civil Court cannot ignore a notice issued by a board pending such consideration or even if the Court takes a different view of the maintainability from that taken by the board. A similar view was adopted in Civ. Even. No.668 of 1943 in the judgment dated 27th July 1943, by a Division Bench pre-sided over by Mukherjea J., to which one of us was a party. The learned advocate for the appellant has endeavored to distinguish the present case on the ground that here we are concerned with an application made by a creditor after a previous application had been made by a debtor, and he points out that under Clause(2) of Section 8 of the Act such an application may not be made. In our opinion, though the wording of Section 8 (2) differs from that of Section 8 (Section), we do not think that this affects the view already expressed in the previous cases that it is for the board to decide whether it can deal with the application or not. On receipt of the application the board will issue notices as required on the necessary parties and will hear them; it can issue a notice under Section 34 of the Act in respect of the debts mentioned in the application staying proceedings in Courts pending decision. No doubt if the facts are as stated, the only Order which the board can pass in the present case when the facts are brought to its notice is to reject the application, but we think that it is for the board to do so and not for the Court to go behind the notice under Section 34 of the Act and ignore it on the ground that there was no application to the board because the creditor was not entitled to move it.

3. A question of fact is involved for decision by the board. Though no doubt it is a simple one and one easy to establish, nonetheless, if the Court ignores a notice under Section 34, Bengal Agricultural Debtors Act, it will be in effect giving a decision against the creditor who has made the application, holding that he was not entitled to do so, and the decision will be made in a proceeding to which he was no party though he may be affected by it.

4. The facts certainly go to show that the judgment-debtors in this case are conspiring with bogus creditors to delay the present execution proceedings. The fact, however, that the provisions of the Bengal Agricultural Debtors Act may be abused in this way appears to be no reason for us to hold otherwise than as we have previously held that the jurisdiction in these matters lies with the board. It may be that the abuse indicates that it would be very useful if there were included in the provisions of the Act some form of penalty on the lines of Section 250, Criminal P.C, for punishing those responsible for frivolous and vexatious applications. The result is that this appeal is dismissed. In the circumstances, we make no Order as to costs.


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