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Corporation of Calcutta Vs. Krishna Mohan Kundu and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberAppeal from Appellate Orders Nos. 59 to 65 of 1951
Judge
Reported inAIR1954Cal254,58CWN324
ActsDebt Law; ;Bengal Agricultural Debtors Act, 1936 - Section 20; ;Evidence Act, 1872 - Section 114
AppellantCorporation of Calcutta
RespondentKrishna Mohan Kundu and ors.
Appellant AdvocateKrishnalal Banerjee and ;Sunil Kumar Basu, Advs.
Respondent AdvocatePurusottam Chatterjee and Rameswar Saha, Advs.
DispositionAppeals partly allowed
Cases ReferredBibhuti Bhusan v. Bholanath Sinha
Excerpt:
- .....were put into execution in march, 1940.2. in the year 1942, two of the judgment-debtors krishna mohan kundu and mohini mohan kundu applied before the mathurapur debt settlement board for settlement of their debts including the above decretal dues and, on receipt of the notice under section 34, bengal agricultural debtors' act, the civil court stayed further proceedings in the execution cases pending before it and when eventually an award was made by the board in favour of the applicants before it, the execution cases were struck off by the court on 18-12-1942.3. about three years later, the decree-holder corporation prayed for fresh execution of the several decrees mentioned above and also applied in the alternative under section 151, civil p. c. read with section 181, limitation act.....
Judgment:

P.N. Mookerjee, J.

1. In or about November, 1936, the Corporation of Calcutta recovered seven preliminary charge decrees against the respondents or their predecessors for consolidated rates under the Calcutta Municipal Act. These decrees were made final some time in September, 1937 and thereafter they were put into execution in March, 1940.

2. In the year 1942, two of the judgment-debtors Krishna Mohan Kundu and Mohini Mohan Kundu applied before the Mathurapur Debt Settlement Board for settlement of their debts including the above decretal dues and, on receipt of the notice under Section 34, Bengal Agricultural Debtors' Act, the Civil Court stayed further proceedings in the execution cases pending before it and when eventually an award was made by the Board in favour of the applicants before it, the execution cases were struck off by the Court on 18-12-1942.

3. About three years later, the decree-holder Corporation prayed for fresh execution of the several decrees mentioned above and also applied in the alternative under Section 151, Civil P. C. read with Section 181, Limitation Act for reviving the execution cases of 1940 and proceeding with the same. The ground given in the application was that the Board's Award was without jurisdiction as the Corporation's dues for rates were not debts within the meaning of the Bengal Agricultural Debtors' Act.

4. The decree-holder's applications were opposed by judgment-debtor Krishna Mohan Kundu who was one of the applicants before the Board, his co-applicant Mohini Mohan Kundu having died in the meantime leaving him as his sole legal representative. The substance of his objection was that the Award of the Board was not without jurisdiction and that, accordingly, there was no question of reviving or continuing the old execution proceedings or allowing fresh execution of the several decrees, mentioned above.

5. The learned Munsif accepted the decree-holder's contention and having held that the Board's Award was without jurisdiction, he directed the new execution cases to continue. On appeal, however, this order was set aside by the learned Subordinate Judge and on further appeal to this Court, the cases were remanded to the lower appellate Court for re-hearing in accordance with law. The question of receiving additional evidence at the re-hearing was left to the decision of the lower appellate Court.

6. At the re-hearing the parties were allowed to adduce additional evidence by the learned Subordinate Judge and the certified copy of the application before the Debt Settlement Board was marked as Ex. A on behalf of the decree-holder Corporation.

7. The learned Subordinate Judge who heard the seven appeals on the fresh materials, referred to above, has now held that the Board's Award was not without jurisdiction and was not a nullity and so the execution cases cannot proceed against the applicants before the Board who are now represented by the objector Krishna Mohan Kundu. He has, however, directed the executions to proceed against the other judgment-debtors, that is, against the charged property excluding the share of the objector Krishna Mohan Kundu representing himself and Mohini Mohan Kundu, since deceased, whose interest, as already stated, devolved upon him.

The learned Judge has further expressed the view that the said objector's share cannot be ascertained from the materials on record and he has given leave to the Corporation to amend their execution applications by excluding from the scope thereof the share of the objector Krishna Mohan Kundu as representing himself and the deceased Mohini Mohan after ascertaining the same. The objector Krishna Mohan Kundu has also been given liberty to challenge the specification of his share by the Corporation 'in a proper proceeding in the executing Court.' Against this decision of the learned Subordinate Judge, the decree-holder Corporation has come up to this Court on appeal. There is no cross appeal or cross-objection on behalf of any of the judgment-debtors.

8. In support of the appeals, the Corporation's learned advocate has raised three contentions, namely, (1) that the decrees in question being admittedly for municipal rates, the Board's Award in respect of them was without jurisdiction, (2) that the award having been passed on a second application after dismissal of the prior one, it was a nullity as the Board had no jurisdiction to entertain a second application for settlement of debts in the circumstances of the present case and (3) that, in any event, the share of the objector should have been ascertained by the learned Subordinate Judge.

9. On the first question the amended Section 20. Bengal Agricultural Debtors' Act furnishes a complete answer. Under that section, the Board has exclusive jurisdiction to decide whether a particular liability is a debt or not within the meaning of the Act. No other tribunal has any jurisdiction in the matter vide -- 'Mahadeo v. Indra Chandra' : AIR1945Cal417 . The Board's decision on the point may be right or wrong. But that is not open to question before the Civil Court, (vide the case of -- 'Brij Raj Krishna v. S. K. Shaw & Brothers' : [1951]2SCR145 (B). The appellant contends that there is nothing to show that the Board has decided that question.

That is not strictly correct as the Award has been made by the Board in respect of the Corporation's dues as well and the making of the award involves a decision that the liabilities covered by it are debts within the Bengal Agricultural . Debtors Act. Moreover, no point was taken anywhere in the two courts below or in the memorandum of appeal in this Court that this particular question was not decided by the Board. That may well explain the absence of the necessary materials on the present record and the Award having been made, it would not be improper in above circumstance to raise the presumption that official acts have been duly performed, or, in other words, all the preliminaries to the making of the Award have been properly done. I, accordingly, hold that the learned Subordinate Judge was right in his conclusion that the Board's Award was not a nullity and in proceeding on that footing. The first point, urged in support of these appeals, there-fore, fails.

10. On the second question too, the decree-holder Corporation is in no better position. There is nothing befere me to show that the application before the Board on which the disputed Award was made was a second application as contended by the appellant. That being the position, there is no scope here for the application of the decision of this Court in the case of -- 'Bibhuti Bhusan v. Bholanath Sinha' : AIR1945Cal326 . The appellant's second point must also, therefore, fail and it is overruled.

11. The third point, however, must, in my opinion, be answered in the appellant's favour. It has already been stated that before the Board there were two applicants, Krishna Mohan Kundu and Mohini Mohan Kundu. It also appears from the materials before me that Mohini Mohan died leaving Krishna Mohan as his sole legal representative. In the application before the Board of which Ex. A is a certified copy, the total share of Krishna Mohan Kundu and Mohini Mohan Kundu was stated to be l/7th. In this state of things, there is little difficulty in ascertaining the share to be excluded from the several executions under the learned Subordinate Judge's order and in holding that the said share to be so excluded would be 1/7th and nothing more can be claimed to be excluded from the present executions on the basis of the learned Subordinate Judge's order than the said one-seventh share.

I, accordingly, hold that the learned Subordinate Judge was not right in his view that there are no materials on the present record to ascertain the share to be excluded from the present execution proceedings. That finding must, therefore, go and his decision will be modified to that extent. The share which is to be excluded from the present executions is determined to be one seventh and this determination will be binding upon the parties to the present appeals.

12. In the result these appeals are allowed in part, the decision of the lower appellate Court is modified as above and the execution cases will now proceed against the charged property after excluding therefrom only the 1/7th share of Krishna Mohan Kundu as representing himself and his co-applicant Mohini Mohan Kundu before the Board as found above. The decree-holder will be allowed to make the necessary amendments in the executing court. There will be no order for costs in this Court or in the lower Appellate Court from after the remand order made by this Court on the previous occasion.


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