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Jogesh Chandra Chakravarty Vs. Mahesh Chandra Chakladar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1938Cal750
AppellantJogesh Chandra Chakravarty
RespondentMahesh Chandra Chakladar and ors.
Excerpt:
- .....mentioned to me.3. the matter went before the gaffargaon board on 11th september 1937, and on this date that board recorded the following order:this case has been transferred by the s. d. o. from the rasulpur d. s. b. he has sanctioned the issue of notice under section 34. issue notice for stay of proceedings in the sub-judge's court. also issue notice under section 13 (1) as well as general notices under section 30. to 23rd october 1937.4. it is in consequence of this notice under section 34 that the learned subordinate judge has made the order for stay against which the present rule is directed. the petitioner's contention before us is that the order of the subordinate judge was with-out jurisdiction, and two grounds were urged in support of this. it was in the first place contended.....
Judgment:

Biswas, J.

1. We are invited in this Rule to consider the propriety of an order made by the first Subordinate Judge of Mymenaingh staying an execution proceeding in pursuance of a notice under Section 34, Bengal Agricultural Debtors Act 1935 (7 of 1936). The petitioner is the decree-holder who held a mortgage decree against two per-sons Mahesh Chandra Chakladar and Rai Umesh Chandra Chakladar Bahadur for a sum of Rs. 10,000 odd with costs and interest. He put the decree into execution in the Court of the First Subordinate Judge at Mymensingh, upon which one of the judgment-debtors Mahesh applied under Section 8, Sub-section (1), Bengal Agricultural Debtors. Act for settlement of his debts and in this application included the debt due under the said mortgage decree. This application was made on 15th August 1937, to the Rasulpur Debt Settlement Board, which on receipt of the application, issued a notice under Section 34 to the Court of the Subordinate nate Judge where the execution case was pending. The learned Subordinate Judge. however refused to act on the said notice on the ground that the case fell under Sub-section (2) of Section 9 of the Act, that is to say, it was a case of a debtor within the meaning of the Act being jointly liable with another person not a debtor under the Act, for a debt and applying under Sub-section (1), Section 8, for relief in respect of his liability in regard to such debt, and that the Rasulpur Board was not therefore competent to deal with the application, not being specially empowered under Section 7 to exercise any powers under Sub-section (2) of Section 9. In the result the learned Subordinate Judge by his order dated 20th August 1937, refused to stay the execution proceedings. The Rasulpur Board on the same date that it issued the notice under Section 34 made an order fixing 12th September 1937, for consideration of the application. This order was presumably made under Sub-section (1) of Section 12 of the Act.

2. It appears however that before the date fixed for hearing, there was an inspection of this Board by an officer of the department who is referred to as D. S. O. in the order sheet, and in consequence of a note made by this Inspecting Officer, the Rasulpur Board transmitted the record of the case to the S. D. O. purporting to do so on the ground that the amount of the claim exceeded the sum of Rs. 1000. The S.D.O. who, it may be stated, is the Collector within the meaning of Clause (7) of Section 2 of the Act, caused an enquiry to be held by a Circle Officer, and on receipt of the report of this officer, transferred the case to the Gaffargaon Debt Settlement Board which was a Board empowered under Section 7. In' making this order of transfer, the S. D. O. proceeded to deal with the question as to whether the applicant was an agricultural debtor or not. He said this:

I think that the applicant who is himself an agricultural debtor can jointly claim a notice under Section 34, Bengal Agricultural Debtors Act. Before issue of such a notice no further reference need be mentioned to me.

3. The matter went before the Gaffargaon Board on 11th September 1937, and on this date that Board recorded the following order:

This case has been transferred by the S. D. O. from the Rasulpur D. S. B. He has sanctioned the issue of notice under Section 34. Issue notice for stay of proceedings in the Sub-Judge's Court. Also issue notice under Section 13 (1) as well as general notices under Section 30. To 23rd October 1937.

4. It is in consequence of this notice under Section 34 that the learned Subordinate Judge has made the order for stay against which the present Rule is directed. The petitioner's contention before us is that the order of the Subordinate Judge was with-out jurisdiction, and two grounds were urged in support of this. It was in the first place contended that the order of the S. D. O. was irregular, not being in accordance with the rules framed under Section 39, and secondly, that the notice under Section 34 was premature and consequently not valid. So far as the first ground is concerned, it is to be observed that no such point was taken before the learned Subordinate Judge, and we do not think that the petitioner can be allowed to raise this particular objection at this stage. The circumstances under which the transfer was made are not quite clear from the record as it stands. But if that point had been taken in the lower Court, this might have been investigated. As this was not done, the petitioner, as I have said, cannot be allowed to raise this point now.

5. Turning to the second point, which is the main ground urged in support of the Rule, the argument in substance is that the notice under Section 34 was bad, inasmuch as it was not issued before the application was considered under Section 12. It is pointed out that the scheme of the Act is that on receipt of an application under Section 8, the first step that has to be taken by the Board is to pass an order fixing a date and a place for consideration of the application under Sub-section (1) of Section 12. When such an order is made, Sub-section (2) requires notice of the date to be given to the other parties interested, and it is said that it is only when after service of such notice the matter is taken up by the Board for consideration, and upon such consideration the application is entertained, that the Board may issue a notice under Section 34 or take other proceedings contemplated by the Act. Otherwise it is argued it may lead to this consequence that proceedings pending in Civil Courts may have to be stayed even before the Board has had an opportunity of considering and deciding if the application made to it conforms to the requirements of the Act. Developing the argument, the learned advocate for the petitioner points out that the Bengal Agricultural Debtors Act is a special Act which sets up a special tribunal with special jurisdiction, and in order to justify any proceeding taken by such a tribunal, it will have to be shown that it comes strictly within the four corners of the Act. This position may be at once conceded, and unless the proceedings in question can be justified on a strict interpretation of the language used in the Act, they will be without jurisdiction. But it does not follow that there is any ground for the contention that the notice under Section 34 here was not permissible within the four corners of the Act.

6. It might well be it was suggested, that the applicant was not a debtor at all within the meaning of this special enactment, and in that view, the Board might not have any jurisdiction to deal with the matter. It would be manifestly wrong, the argument proceeded, in such a case to allow the Board to issue a notice and stay proceedings in Civil Courts before deciding the preliminary point. Plausible as this argument may seem to be, it does not however find any support from the relevant provisions of the Act. The issue of a notice under Section 34 almost at the initial stage of the proceedings does by no means preclude a decision at a later stage of the question as to whether the applicant is a debtor or as to whether the application conforms to the requirements of the Act, at the instance of any of the opposing parties. Section 20, in fact, contemplates that the question as to whether a person is a debtor or not is a question which it is competent for a party to raise before the Board, and which it shall be the duty of the Board to decide when raised. The question as to whether the application is in accordance with the other requirements of the Act is also one within the purview of the Board. It does not follow however that these questions must be raised or decided at the initial stage, or that before these questions are raised or decided, the Board is powerless to act, in particular to take action under Section 34.

7. If reference is made to Section 12, it will be seen that that Section itself contemplates that before an order is made fixing a date and place for the consideration of the application, the Board may proceed to consider the question as to whether the application should not be forthwith dismissed under Section 17. In other words, it shows that between the date of the application and the date fixed for the consideration of the application under Section 12, the Board may exercise important functions. If it can decide the question as to whether the application should be dismissed under Section 17 or not, it is difficult to see why the Board should not have jurisdiction likewise to issue a notice under Section 34. A notice under Section 34 is more in the nature of an interim order. Such an order may in many cases have to be made at the very first stage, if the object of the Act is not to be defeated. An interim order of this description from the nature of things is made ex parte. When the parties do appear later on, on receipt of notices, it will certainly be open to them to challenge the propriety of that order if they can. If they do so, it will then be the duty of the Board to consider the matter and if the Board finally finds that the application was not a proper or valid application under the Act, either because the applicant was not a debtor or on any other grounds, the application will be dismissed, and along with that, any notice under Section 34 which may have been issued will automatically cease to have any effect. No injustice is thereby involved to any of the parties concerned. On the other hand, if effect were given to the views which were urged on behalf of the petitioner, it may lead to unnecessary complications and it might frustrate the object with which these special provisions have been enacted for the benefit of a certain class of debtors. On an examination of the relevant provisions, we are therefore of opinion that it is not necessary before the issue of the notice under Section 34 that a date and place for the consideration of the application must be fixed under Section 12, or that notice of such date must be given to the parties and the parties heard. In that view of the matter, we hold that the notice under Section 34 was competent, and it was incumbent on the learned Subordinate Judge, on receipt of such notice, to make an order for stay.

8. The learned Subordinate Judge held that if the matter was left to him he would have held that the applicant was not a debtor. All the same he pointed out correctly that this is a question which is outside the purview of his jurisdiction. It may still be open to any of the parties to raise the question before the Board, if they choose. The rule is discharged with costs. Hearing fee, three gold mohurs. There is an application made on behalf of the heirs of the judgment-debtor Rai Umesh Chandra Chakladar Bahadur as the Rai Bahadur is now dead. The learned advocate is allowed to withdraw the application.

M.C. Ghose, J.

9. I agree.


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