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Bireswar Moral and anr. Vs. Indu Bhushan Kundu and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1943Cal573
AppellantBireswar Moral and anr.
Respondentindu Bhushan Kundu and ors.
Cases ReferredSee Wasrne v. Beresford
Excerpt:
- .....20 of act 7 of 1986 before its amendment by act 8 of 1940 did not empower the debt settlement board to decide the question as to whether a particular liability is a debt within the meaning of the act. the jurisdiction of the civil court to decide such a question under section 9, civil p.c., was therefore, not barred either expressly or impliedly. the act of 1940 by necessary implication took away the jurisdiction of the civil court to decide this question and empowered the board to decide it. the dispute between the parties as to whether the appellants' liability is or is not a debt within the meaning of the act was raised and decided after the amending act of 1940 came into force. the question, therefore, is whether the munsif had jurisdiction to decide this dispute. in jabed shikh.....
Judgment:

1. The respondents obtained a decree for money against the appellants in a g suit for recovery of the price of Barga crops in the Court of the Munsif at Khulna. They put this decree into execution. The appellants then filed an application for relief before the Debt Settlement Board under the Bengal Agricultural Debtors Act (Act 7 of 1936). A notice under Section 34 of this Act was issued on 25th June 1940. In pursuance of this notice, the Munsif stayed the execution proceedings on the next day. On 11th July 1940 the Bengal Agricultural Debtor's Amendment Act (Act 8 of 1940) came into force. By this Act, Section 20 of Act 7 of 1936 was amended by inserting therein the following words: 'or I whether a liability is a debt or not' before the words 'the Board shall decide the matter.' On 24th August 1940 the respondents objected to the order of stay made by the Munsif on 26th June 1940 on the ground, that the appellants' liability under the decree was not a debt within the meaning of Act 7 of 1936 and consequently the Debt Settlement Board had no jurisdiction to issue notice under Section 34 of Act 7 of 1936. The Munsif held that the appellant's liability under the decree was not a debt as defined in Act 7 of 1936. He accordingly vacated the stay order. This order of the Munsif has been affirmed by the First Appellate Court as well as by Henderson J. on second appeal Hence this appeal by the judgment-debtors under Clause 15 of the Letters Patent.

2. The contention of the appellants in this appeal is that after Act 8 of 1940 came into force, only the Debt Settlement Board had jurisdiction to decide the question whether the liability of the appellants under the decree was a debt within the meaning of Act 7 of 1936 and that the Munsif had no jurisdiction to decide this question. Section 20 of Act 7 of 1986 before its amendment by Act 8 of 1940 did not empower the Debt Settlement Board to decide the question as to whether a particular liability is a debt within the meaning of the Act. The jurisdiction of the civil Court to decide such a question under Section 9, Civil P.C., was therefore, not barred either expressly or impliedly. The Act of 1940 by necessary implication took away the jurisdiction of the civil Court to decide this question and empowered the board to decide it. The dispute between the parties as to whether the appellants' liability is or is not a debt within the meaning of the Act was raised and decided after the amending Act of 1940 came into force. The question, therefore, is whether the Munsif had jurisdiction to decide this dispute. In Jabed Shikh v. Taher Mallik : AIR1941Cal639 Mukherjee J. said:

In the present case the application for settlement of the debt was presented by the petitioners long before the amended Act came into force and the notice under Section 34 of the Act wag also issued before that date. We do not think, therefore, that the provisions of the amended Act are at all attracted to the fact of the present case. Any way, it is not necessary to discuss the matter further as the rule that has been granted in this case, is not an open rule, but is expressly limited to grounds 1 and 2 of the petition neither of which covers the present point.

3. These observations of the learned Judge are obiter dicta.

It is a general rule that when the Legislature alters the rights of parties by taking away or conferring any right of action, its enactments, unless in ' express terms they apply to pending actions, do not affect them. But there is an exception to this rule, namely, where enactments merely affect procedure, and do not extend to rights of action.' 'For it is perfectly settled that if the Legislature forms a new procedure, that, instead of proceeding in this form or that, you should proceed in another and a different way, clearly there by gone transactions are to be sued for and enforced according to the new form of procedure. Alterations in the form of procedure are always retrospective, unless there is some good reason or other why they should not be.' 'A statute cannot be said to have a retrospective operation because it applies a new mode of procedure to suits commenced before its passing.' In other words, if a statute deals merely with tlie procedure in an action, and does not affect the rights of the parties, 'it will be held to apply prima facie to all actions, pending as well as future.' (Craies on Statute Law, 4th Edn. p.337). 'Whether a person has a right to recover property is a question of substantive law.' But in what Court he must institute proceedings is a question of procedural law. (Salmond on Jurisprudence.)

4. If the liability of a debtor is not a debt within the meaning of Act 7 of 1936 the creditor has got the right to recover the entire money from the debtor. If the liability of the debtor is a debt within the meaning of that Act the debtor gets certain relief under that Act. The amending Act of 1940 has not altered this right or liability of the parties under the Act of 1936 as it has not taken away any right of action under the said Act The amending Act, therefore, has not touched the substantive rights of the parties under Act 7 of 1936. It simply lays down in what tribunal the dispute between the parties as to whether a particular liability is or is not a debt within the meaning of Act 7 of 1936 is to be determined. It simply changes the forum. It lays down that the dispute is to be settled by the Debt Settlement Board and not by the civil Court. The provisions of the amending Act relating to this change of forum are, therefore, simply matters of procedure and are attracted to the facts of the present case. The Munsif, therefore, had no jurisdiction to determine whether the appellants' liability under the decree is a debt within the meaning of Act 7 of 1936 and to vacate the stay order : See Wasrne v. Beresford (1837) 6 L.J. Ex. 192. The result, therefore, is that this appeal is allowed. The orders of the Courts are set aside. The proceedings in the execution case are stayed under Section 34 of Act 7 of 1936. The appellants will get their costs throughout this litigation, hearing fee in this appeal being assessed at two gold mohurs.


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