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Fazal Ahmed Choudhury S/O Nazir Ahmed Choudhury Vs. Etim Ali Choudhury S/O Jan Ali Choudhury - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1942Cal337
AppellantFazal Ahmed Choudhury S/O Nazir Ahmed Choudhury
RespondentEtim Ali Choudhury S/O Jan Ali Choudhury
Excerpt:
- .....small cause courts act of 1887 by virtue of the provisions of section 25, bengal, agra and assam civil courts act of 1887. in other words it is the court of a munsif defined in section 3(4) of that act as one of the classes of the civil courts thereunder that is exercising the jurisdiction of the court of small causes so conferred, and it is therefore clear that the court is exercising that jurisdiction as a civil court within the meaning of the definition in the bengal agricultural debtors act. the provincial small cause court's act of 1887 in section 5 makes provision for the, establishment of courts of small causes and in section 6 for the appointment of judges of such courts. succeeding sections of the act make provision as regards jurisdiction, practice and procedure of such.....
Judgment:
ORDER

Roxburgh, J.

1. This rule arises out of a decree passed by the second Court of the Munsif of Patiya in the exercise of his jurisdiction as a Court of Small Causes dated 19th August 1941 allowing a claim on a handnote for Rs. 70. The rule has been obtained on the ground that the Court had no jurisdiction to hear the suit. The case of the defendant in the suit was that he had filed a case No. 119 of 1940 in the Kashiash Debt Settlement Board showing all his debts including that of the present handnote.. In the award finally made by the Board this debt is shown and it is clear therein that no amount is due on the pronote. This decision is binding on the parties by virtue of the provisions of Sections 25(3) and 18(1), Bengal Agricultural Debtors Act, 1936, and therefore no decree should be passed in respect of the claim. It was the defendant's case that the debt had been, paid off by enjoyment of the usufruct of the land, by, the plaintiff creditor for a period of years and ,it, was further contended that the Debt Settlement? Board had passed an order under Section 13(2), Bengal Agricultural Debtors Act, to the effect that nothing was due to the plaintiff 1 on the pronote in question. The learned Munsif found that there was no order under Section 13(2) and no copy of such an order has been proved in the ease. He further considered that the proceedings of the Board were, in some respects, defective and held that the award must follow, the order under Section 13(2). As there was no such order the award could not be valid in this respect. In my opinion the learned Munsiff has taken a wholly incorrect view of the matter. It is clear t hat this debit was brought before the Board, that the creditor failed to appear before the Board which held that the debt had been satisfied and that nothing further was due on the handnote. In that view of the, matter the learned Munsif should have dismissed the suit.

2. It has, however, been brought to my notice that the opposite party has obtained a certified copy of the award from the Registration Office and this differs in material particulars from that filed in the suit. It is not possible for this Court conveniently to enquire into the matter and in these circumstances the proper order would appear to be to set aside the order decreeing the suit and send the case back to the lower Court for that Court to consider the copies of this award and to ascertain which is the correct copy. It would then be in a position to decide in the light of the above remarks whether in the correct copy of the award there is anything which is a bar to a decree being given in the suit.

3. An objection has been taken that the second Court of the Munsif of Patiya exercising jurisdiction of a Court of Small Causes is not a civil Court within the meaning of the definition given in Section 2(6A), Bengal Agricultural Debtors Act. Strictly speaking, no question of jurisdiction arises in this matter. The only point is that the Court is bound by the decision of the Board. However, as the point has been discussed at some length, I will briefly state my reasons for holding that the Court of the Munsif in this matter is a civil Court within the meaning of the definition given in Section 2(6A). The munsif is exercising the jurisdiction of a judge of a Court of Small Causes under the Provincial Small Cause Courts Act of 1887 by virtue of the provisions of Section 25, Bengal, Agra and Assam Civil Courts Act of 1887. In other words it is the Court of a munsif defined in Section 3(4) of that Act as one of the classes of the civil Courts thereunder that is exercising the jurisdiction of the Court of Small Causes so conferred, and it is therefore clear that the Court is exercising that jurisdiction as a civil Court within the meaning of the definition in the Bengal Agricultural Debtors Act. The Provincial Small Cause Court's Act of 1887 in Section 5 makes provision for the, establishment of Courts of Small Causes and in Section 6 for the appointment of Judges of such Courts. Succeeding sections of the Act make provision as regards jurisdiction, practice and procedure of such Courts. In Chap. 5 supplementary provisions are made and in Section 32(1) specific provision is made that certain parts of Chaps. 3 and 4 specified therein apply 'to Courts invested by or under any enactment for the time being in force with the jurisdiction of a Court of Small Causes so far as regards the exercise of that jurisdiction by those Courts.'

4. Section 33 makes special provision that for the purposes of the Provincial Small Cause Courts Act and the Civil Procedure Code. 'A Court invested with the jurisdiction of a Court of Small Causes with respect to the exercise of that jurisdiction, and the same Court with respect to the exercise of its jurisdiction in suits of a civil nature which are not cognizable by a Court of Small Causes shall be deemed to be different Courts.'

5. Section 34(a) provides thus : 'when in exercise of the jurisdiction of a Court of Small Causes, a Court invested with that jurisdiction sends a decree for execution to itself as a Court having jurisdiction in suits of a civil nature which are not cognizable by a Court of Small Causes;' certain documents are not required to be sent. All this abundantly supports the view that it is the civil Court of the munsif which is functioning even when it is exercising the jurisdiction of the Court of Small Causes conferred upon it by a notification made under Section 25, Bengal, Agra and Assam Civil Courts Act. It is clear therefore that the Court is a civil Court within the definition given in Section 2(6A), Bengal Agricultural Debtors Act of 1936. A further objection is taken that, as at the time of the suit the award in question had not been registered as required under Section 47, Bengal Agricultural Debtors Act, the award could not be put in as evidence. In my opinion, there is no substance in this objection as Section 49, Registration Act of 1908, has no application to an award under the Bengal Agricultural Debtors Act. The rule is accordingly made absolute, the order of the munsif decreeing the suit in favour of the opposite party is set aside and the case will go back for consideration by the Court below, in the light of this order, of the terms of what it finds to be the actual award made by the Debt Settlement Board in Case No. 119 of 1940. There will be no order as to costs in this rule.


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