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Sarat Chandra Pal, His Heirs and Legal Representatives Sudhansu Kumar Pal and ors. Vs. Nur Muhammad Hazi Yacub - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1944Cal232
AppellantSarat Chandra Pal, His Heirs and Legal Representatives Sudhansu Kumar Pal and ors.
RespondentNur Muhammad Hazi Yacub
Cases ReferredLtd. v. Pabna Motor Service
Excerpt:
- .....subordinate judge set aside the munsifs order and directed execution to proceed. the judgment-debtor appealed to this court. he died during the pendency of the appeal and his sons have been substituted in his place.2. when the munsif dealt with the matter the notice under section 84 still enjoyed whatever force it ever had. it became spent, however, when the board made the award while the appeal was pending in the lower appellate court. the only question for consideration now is whether the respondent is entitled to proceed with his execution case.3. the liability is undoubtedly a debt under the definition of a debt in section 2 (8) of the act. furthermore, under the provisions of section20 it is for the board to determine whether the liability is a debt or not. the board.....
Judgment:

Henderson, J.

1. This appeal is by the judgment-debtors.spondent obtained a decree in the Small Cause Court, Calcutta, against the appellants' father Sarat Chandra Pal for the price of goods supplied to his business. The decree was transferred to the Court at Alipore, for execution and the immovable property of the judgment-debtor was attached. The usual sort of objections were taken by the present appellants and other relatives but they failed. In the meantime Sarat Chandra Pal applied to a Debt Settlement Board and the execution proceedings were stayed on receipt of a notice under Section 34, Bengal Agricultural Debtors Act, on 20th April 1989. On 2nd April 1941, the respondent applied to the Court with a prayer that the stay Order be vacated. The judgment-debtor filed what amounts to an objection under Section 47, Civil P.C. to the effect that the execution could not proceed on various grounds. The Munsif allowed the objection and dismissed the execution case. The decree-holder appealed. While the appeal was pending the Board made an award. As the amount of the debt had been decreed by a Court it could not be reduced by the Board without a flagrant violation of the law. It was, however, made payable in 19 instalments. On appeal the learned Subordinate Judge set aside the Munsifs Order and directed execution to proceed. The judgment-debtor appealed to this Court. He died during the pendency of the appeal and his sons have been substituted in his place.

2. When the Munsif dealt with the matter the notice under Section 84 still enjoyed whatever force it ever had. It became spent, however, when the Board made the award while the appeal was pending in the lower appellate Court. The only question for consideration now is whether the respondent is entitled to proceed with his execution case.

3. The liability is undoubtedly a debt under the definition of a debt in Section 2 (8) of the Act. Furthermore, under the provisions of Section20 it is for the Board to determine whether the liability is a debt or not. The Board undoubtedly had jurisdiction to deal with the matter and has made an award by the terms of which the debt is to be paid in 19 annual instalments. Under the provisions of Section 28 in case of default of any instalment it may be recovered as though it were a public demand. Under Section 28 (2) the Certificate Officer may allow the judgment-debtor time. It is undoubtedly anomalous if the decree-holder can realise the whole amount in these execution proceedings. But the existence of an anomaly cannot deprive the decree-holder of any right, which he may have under the law.

4. Ordinarily, execution proceedings such as these would be barred under the provisions of Section 35. But, in view of the definition of 'Civil Court' in Section 2 (6A), the decree now under exe. cution is not a decree within the meaning of this section. Mr. Mitter, however, contended that the present proceedings are barred under section 33.

5. The section lays down that no civil Court shall entertain an application against the debtor in respect of any debt for which any amount is payable under an award except in accordance with the provisions of Sub-section (5) of Section 29. The first question to be considered is whether the Court of the Munsif is a civil Court within the meaning of the section.

6. The learned Subordinate Judge relied upon a decision of mine in Geo Miller and Co., Ltd. v. Pabna Motor Service : AIR1941Cal706 . That decision deals with a case under Section 34 of the Act. But I see no reason to suppose that the term 'Civil Court' has a different meaning in Section 33. After further consideration I have reached the conclusion that that decision was wrong for a reason, which was not, then under consideration. The only point then discussed was whether the decree had been passed by a civil Court.

7. A further point, however, arises whether the Court of the Munsif now executing the decree is a Court within the meaning of Section 33. It is undoubtedly a Court within the definition of Section 2 (6A). It is prohibited from entertaining any suit, application or proceeding against the decree in respect of this debt. The : AIR1941Cal706 , Geo Miller and Co., Ltd. v. Pabna Motor Service, fact that the liability is based on a decree by a Court which is not a Court within the definition of Section 2 seems to me to be really irrelevant. The true position appears to be that, while the respondent is in this case entitled to execute the decree in the Court which passed it, he cannot in view of the provisions of Section33 make any application for execution in a transferee Court which is a civil Court within the meaning of Section 2 (6A). In other words, he must remain content with such relief as he may obtain by executing the decree in the Small Cause Court.

8. It therefore becomes necessary to consider whether it can be said that the Munsif in the. Court at Alipore entertained this application for execution in contravention to the provisions of Section 33. In the first place, it is true that an application for transfer of the decree had to be made to the Small Cause Court under Section 39, Civil P.C. But this does not work automatically. It is still necessary to make an application to the transferee Court under Order31, Rule 10. In my judgment that would be an application within the meaning of Section 33. I have, however, reached the opinion that Section 33 has no application to pending cases. When the present application was entertained the judgment-debtor had not applied to the Debt Settlement Board and the bar under Section 33 had not come into existence. Although future applications of this kind will be prohibited except under the provisions of Section 29 (5), there is no bar to the present application. For these reasons I am of opinion that, however anomalous it may be, the respondent is entitled to go on with these proceedings.

9. It only remains to deal with the appellants' plea of estoppel. Briefly, this is based on the alleged conduct of the decree-holder in connexion with the proceedings before the Board. The learned Subordinate Judge refused to deal with it. Though it is a matter of the utmost importance, questions of fact are involved and it is impossible to determine it without evidence. I merely note that Mr. Mallik stated that his instructions are that the decree-holder took no part in the proceedings and never accepted the terms of the award. He also stated that he would contend that the appellants cannot rely on estoppel as they have themselves failed to carry out their side of the alleged agreement.

10. The result is that the Order of the lower appellate Court directing execution to proceed is set aside and the case is remanded to him in Order that he may determine whether the decree-holder is estopped from proceeding with the present execution case. If this is answered in the affirmative, he will dismiss the appeal; if it is answered in the negative, he will allow the appeal and direct execution to proceed. The attachment will remain in force. Both sides will be at liberty to adduce evidence.

11. Costs in this Court will abide the result--hearing-fee two gold mohurs.


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