1. The judgment-debtor is the appellant in this case and the appeal arises with reference to the dismissal of an application filed by the judgment-debtor under Section 47, Civil P. C., in which he sought to set aside an execution sale. It appears that the decree-holder obtained a decree for rent against the appellant on 12th July 1937. On 28th May 1938 he put this decree into execution and the requisite processes had been served by 14th June 1938. On 30th June 1938 the appellant applied to the Debt Settlement Board for the settlement of his debts and he alleges the rent decree which the decree-holder was seeking to execute was included in the application under Section 8, Bengal Agricultural Debtors Act. He maintained that the Debt Settlement Board in due course issued a notice under Section 34 of the Act but, in spite of the issue of this notice, the execution sale was held on 9th August 1938. Thereafter, on 11th November 1938 the appellant applied to the Court under Section 47, Civil P. C., to have this sale set aside. Issues were framed by the trial Court with regard to the question of the maintainability of the application and also on the points whether or not the application to the Board was a bar in respect of the subsequent proceedings in execution and whether the sale was vitiated by reason of the alleged issue of the notice under Section 34, Bengal Agricultural Debtors Act. Although it was decided that the application was maintainable, the other two points were decided against the appellant and the trial Court held that in fact no notice under Section 34, Bengal Agricultural Debtors Act, had been issued by the Board and that in these circumstances the sale which was held on 9th August 1938 could not be impeached by the appellant. The judgment-debtor thereafter appealed to the learned District Judge of Mymensingh and his appeal was dismissed.
2. The main point which has been argued on behalf of the appellant in this case is that, in view of the fact that an application had been made to the Debt Settlement Board under Section 8, Bengal Agricultural Debtors Act, which included the decree which was the subject-matter of the execution proceedings in Execution case No. 54/c of 1938, the Court had no option but to set aside the sale under Section 47, Civil P. C., as soon as the fact had been brought to its notice that the application had been actually made to the Board and, in this connexion it was further contended that the non-receipt of the stay order under Section 34, Bengal Agricultural Debtors Act, must be regarded as immaterial. With regard to this matter it may be noted that the appellant places particular reliance upon the provisions of Section 35, Bengal Agricultural Debtors Act. This was a point which was not directly raised in either of the Courts below but, as it involves an important question of law, there is no reason why it should not be raised in this Court.
3. In the first place, it has been argued by the learned advocate for the respondents that no appeal lies to this Court having regard to the principles laid down in Prafulla Krishna Deb v. Nosibannessa Bibi ('17) 4 AIR 1917 Cal 308. In view of the fact that the decree which it was sought to execute was in respect of a sum of Rs. 19-11-6 only this contention must be accepted having regard to the provisions of Section 153 (a), Ben. Ten. Act. At the same time, I am of opinion, for the reasons which will presently appear, that the Courts below have taken an erroneous view of the law with regard to this matter and have acted illegally in the exercise of their jurisdiction. It is, therefore, open to this Court to interfere in the exercise of its revisional jurisdiction under Section 115, Civil P. C. The learned advocate for the appellant in this case, as already pointed out, relies mainly upon the provisions of the first part of Section 35, Bengal Agricultural Debtors Act, which is in the following terms:
Notwithstanding anything contained in any Act, no decree of a civil Court or certificate under the Bengal Public Demands Recovery Act, 1913, shall be executed (i) for the recovery of a debt included in an application under Section 8 or in a statement under Sub-section (1) of Section 13, until (a) the application has been dismissed by the Board in respect of such debt; or (b) an award in which such debt is included has ceased to subsist under Sub-section (5) of Section 29. ...
4. His argument is to the effect that, as soon as an application to the Board is made under the provisions of S.8 of the Act, the civil Court loses its jurisdiction to execute any decree which may have been included in the application in question. He admits that, according to the ordinary procedure which should be followed by Debt Settlement Boards, a notice under Section 34 of the Act should be issued to the Court concerned and that, on receipt of such notice, the Court should stay all further proceedings in the matter. He contends, however, that in a case in which the Board failed to fulfil its duty under Section 34, and the execution sale was held by reason of such failure, it would be open to the judgment-debtor himself to bring the matter to the notice of the executing Court which would be bound to set aside the sale if the judgment-debtor succeeded in showing that he had duly applied for the settlement of his debts under S.8 of the Act and his application included the decree which had been put into execution by the sale in question.
5. The main argument of the decree-holder is to the effect that the question of the illegality of the sale should be pleaded at the proper stage of the execution proceedings before the sale actually took place. He contends that such a plea should be regarded as a plea in bar, which should be deemed to be waived unless such plea is expressly taken before the sale. In support of this contention reliance is placed upon the decision of the Madras High Court in Moturi Seshayya v. Venkatadri Appa Row ('17) 4 AIR 1917 Mad 950. In that case the learned Judge observed that:
It must be remembered that the plea of res judicata is one which does not affect the jurisdiction of the Court, but it is a plea in bar of a trial of a suit or an issue, as the case may be, which a party is at liberty to waive.
6. This case was cited with approval by this Court in Rajani Kumar Mitra v. Ajmaddin Bhuia ('29) 16 AIR 1929 Cal 163 in which the learned Judge observed that:
If a party does not put forward his plea of res judicata in a suit he must be taken to have waived it or it must be taken to be a matter which ought to have been made a ground of attack and deemed to have been a matter directly and substantially in issue in the suit under explanation (4) of Section 11, Civil P. C.
7. In the cases cited above, it would appear that the plea of res judicata had not been expressly taken in the pleadings and it was on this account that it was held that this defence had been waived. In the present case, however, it cannot be said that the appellant had at any time waived his right to rely on the provisions of Section 35, Bengal Agricultural Debtors Act. As soon as he filed his application to the Debt Settlement Board on 30th June 1938 he was justified in assuming that the Board would comply with the mandatory requirements of Section 34 of the Act and would issue a notice to stay all further proceedings in execution of the decree in respect of any debt which might have been included in his application. Ordinarily, therefore, no occasion would have been arisen for him to inform the Court that he had actually made an application to the Board for the settlement of his debts or to contend that by reason of such application the decree had become incapable of execution. In this view of the case, the decisions upon which the learned advocate relies are of little avail to him. In my view, there can be no doubt that the intention of the Legislature was to provide that all proceedings for the execution of decrees for debts included in an application under S.8 should be automatically stayed as soon as the application was filed before a Board, and for this purpose it was provided under Section 34 of the Act that due notice with regard to such application should be given to the civil Court. The terms of this section are mandatory inasmuch as it says that.the Board shall give notice thereof to such Court in the prescribed manner, and thereupon, the suit or proceeding shall be stayed until the Board has either dismissed the application in respect of such debt or made an award thereon.
8. At the same time, in view of the language of Section 35 of the Act it is impossible to hold that it could have been the intention of the Legislature that a judgment-debtor should be deprived of a valuable right which had been conferred upon him by the Act by reason merely of some carelessness on the part of the Board, which might result in failure to issue the required notice. It is contended on behalf of the respondent that, when once a rent sale has been held the debt must be regarded as satisfied and the matter will therefore no longer fall within the scope of the Bengal Agricultural Debtors Act and that a rent sale which has been held by the civil Court in the exercise of its jurisdiction cannot be set aside under Section 47, Civil P. C., in a case such as that with which we are now dealing. I am not prepared to accept this contention. The question as to the validity of the execution sale is clearly a matter which arises between the parties to the suit and relates to the execution of the decree and therefore falls within the purview of Section 47, Civil P. C. At the same time, when once an execution sale had been held there is a strong presumption to the effect that it was validly held by a Court which acted in the exercise of its ordinary jurisdiction. This being the case, the onus would lie heavily upon the applicant to show that the sale was in fact illegal on the ground that before the sale he had applied to the Debt Settlement Board for the settlement of his debts and had included in his application the debt in respect of which the execution proceedings had been taken, which resulted in the sale. If the applicant is liable to discharge this onus, in my opinion, the Court would have no option but to set aside the sale even if it had received no notice under Section 34, Bengal Agricultural Debtors Act. The result would therefore be that even if the debt had been extinguished by the sale it would revive after the sale had been set aside and the provisions of the Bengal Agricultural Debtors Act would apply thereto.
9. The question whether or not the application under Section 8, Bengal Agricultural Debtors Act, had actually been made by the appellant to the Debt Settlement Board and whether this application included the decree which he sought to execute in Execution Case No. 54/C of 1938 has not been considered by the Courts below. This being the case, the decisions of both the Courts be set aside and this case is remanded to the trial Court for further consideration in the light of the above observations. The appeal is accordingly allowed. Costs will abide the final result. The hearing fee in this Court is assessed at three gold mohurs. This order will however not have the effect of disturbing the findings of the trial Court with regard to the maintainability of the application and the further finding to the effect that no notice under Section 34, Bengal Agricultural Debtors Act, was actually issued by the Board.