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Bhagawan Dayal Sahu Vs. Chandulal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1938Cal23
AppellantBhagawan Dayal Sahu
RespondentChandulal and ors.
Excerpt:
- .....be limited to oases involving not more than one thousand rupees. it seems clear therefore that the bengal debt settlement act in its present shape is likely to entail consequences of a fantastic description which obviously could not have been fully realized or even dimly foreseen when the act was drafted or when it was passed into law. fortunately, however, in the present case, we are able to say that the learned judge was right as regards one other conclusion at which he arrived, or rather one other ground on which he refused to recognize the notice as being effective. that ground is stated by him in this way : 'act 7 of 1936 has not been brought into force in darjeeling district under section 1 (3).'6. it has been admitted by the learned' advocate appearing for the petitioner here,.....
Judgment:

Costello, Ag. C.J.

1. This is an application challenging an order made by the Subordinate Judge of Darjeeling on 29th May 1937. The matter is intituled as an application under Section 224, Government of India Act, 1936 and Section 115, Civil P.C. As regards that, we desire to say at the outset that although Section 224, Government of India Act, 1935 (not 1936 as stated) contains in effect a reproduction of the terms of Section 107 of the previous Government of India Act, it also contains a Proviso which makes it clear that Section 224 has no application of itself to legal proceedings at all. It follows therefore that if any relief is to be obtained in revision, it must be obtained under Section 115, Civil P.C., or not at all.

2. The order complained of was one refusing to stay a suit which has been started by a number of persons of the name of Shaha in the Court, of the Subordinate Judge of Darjeeling against a number of persons by the name of Agarwalla. All the plaintiffs and originally all the defendants, so we are told, resided and carried on business at Kurseong in the District of ' Darjeeling. The suit was one for the recovery of a sum of Rs. 26,855-15-0. It was instituted as long ago as 16th November 1935 and pursued its ordinary course until 3rd May 1937 when the defendants prayed for time to compromise and succeeded in getting an adjournment until 31st May 1937 and it was then intimated that no further time would be granted. It seems that one of the defendants Bhagawan Dayal, who is the petitioner before us, had quarrelled with his co-sharers, the other defendants, and was no longer in alliance with them. It appears that he went off and claimed to reside at Maldah and on that basis presumably he made an application on 25th May 1937 under the provisions of the Bengal Agricultural Debtors Act, 1935, to a Board established under the provisions of the Act at Parbatipore, claiming apparently that he was a debtor within the meaning of the Act, and so entitled to the benefit of the Act-despite the fact that the amount which had been claimed in the suit in the Court of the Subordinate Judge of Darjeeling was a sum of over Rs. 26,000. The Chairman of the Board forthwith, and as it seems without the matter being formally brought before the Board at all, on the very same day by a letter of that date, namely 25th May 1937 sent a notice to the Subordinate Judge of Darjeeling requiring under the provisions of Section 34 of the Act a stay of the suit then pending in that Judge's Court. Thereupon this remarkable situation arose that an Agricultural Board was being invited to take and indeed was already taking (by its Chairman) action which had the effect of holding up a suit involving a claim to over Rs. 26,000 solely upon the ex parte statement of one of the defendants that he was a 'debtor' within the meaning of the Act. On 29th May 1937 the notice which had been served upon the Subordinate Judge of Darjeeling by means of the letter of 25th May 1937 was considered by the Subordinate Judge, and we find that the order recorded on that date begins thus:

Received notices under Section 34, Bengal Agricultural Debtors Act, 1936 from the President, Parbatipore Debt Settlement Board, District Maldah, for 'stoppage' (quoting the words of the section obviously) of this suit.

3. The learned Judge refused to consider himself bound by that notice on several grounds the first of which was that the defendants were not debtors within the meaning of Section 2 (9). The learned Judge stated:

From the notice, it does not appear if all the defendants joined in the petition to Debt Settlement Board under Section 9 of the Act.

4. Lastly

As the defendants do not ordinarily reside in Maldah, the Debt Settlement Board of Parbatipore has no jurisdiction regarding the debts in suit, under Section 8 (1) of the Act.

5. It is to be observed that although the alleged debt was as much as Rs. 26,000, it yet does not seem open to the Court to decide or even consider whether the debtor comes within the Act or whether he does not; that question rests solely with the Board. If therefore there were no other matters to be taken into consideration, there would have arisen this amazing situation: that the Debt Settlement Board of Parbatipore would have been able to hold up a suit started in the Court of the Subordinate Judge of Darjeeling in which a sum of over Rs. 26,000 was in dispute, and if that Debt Settlement Board had come to the conclusion that the defendants were in fact debtors within the meaning of the Act, the Board might have completely ousted the Court and adjudicated in effect upon a claim for Rs. 26,000 and the only appeal, against their decision, would have been to a Munsif whose ordinary powers might be limited to oases involving not more than one thousand rupees. It seems clear therefore that the Bengal Debt Settlement Act in its present shape is likely to entail consequences of a fantastic description which obviously could not have been fully realized or even dimly foreseen when the Act was drafted or when it was passed into law. Fortunately, however, in the present case, we are able to say that the learned Judge was right as regards one other conclusion at which he arrived, or rather one other ground on which he refused to recognize the notice as being effective. That ground is stated by him in this way : 'Act 7 of 1936 has not been brought into force in Darjeeling district under Section 1 (3).'

6. It has been admitted by the learned' advocate appearing for the petitioner here, who, as I have said, is one of the many defendants in the suit, that in fact the Act has not been put into force in the Darjeeling District. There seems to be a curious inconsistency with regard to the manner in which this Act is described. Section 1 (1) says this : 'This Act may be called the Bengal Agricultural Debtors Act, 1935.' It also seems to be described as 'Bengal Act 7 of 1936'. There is a notification of 26th June 1936 which gives a list of certain districts in which the Act is to be operative. That list does not include Darjeeling. In these circumstances, it seems quite clear that the Court in Darjeeling was not in any way subject to the provisions of the Act and the learned Judge was quite entitled to take no notice of the letter which was sent under date 25th May 1937. In any event, this is clearly not a matter which comes within the scope of Section 115, Civil P.C. The result is that this Rule must be discharged with costs; hearing fee two gold mohurs.

Edgley, J.

7. I entirely agree with the* observations which have been made by my Lord the Acting Chief Justice with regard to the situation which may arise having regard to certain provisions of the Bengal Agricultural Debtors Act,, and I doubt whether these consequences were foreseen by the Legislature at the. time when the Act in question was passed. I also agree that in this particular case it is impossible for us to interfere, because the Act admittedly has not been brought into force within the Darjeeling District. under Section 1 (3) of the Act.

8. The learned advocate for the petitioner argued at some length that because the Parbatipore Board had jurisdiction to. entertain the petitioner's application, it. had also jurisdiction to issue a notice under Section 34, Bengal Agricultural Debtors, Act, on a Court situated in Darjeeling and that on receipt of such a notice the Darjeeling Court was bound to comply with) it. In my view, however, this is a contention which cannot possibly be upheld.. Section 34 of the Act lays down that in a case in which an application has been made to a Board for the settlement of a debt in respect of which a suit or other proceeding is pending before a Civil Court or Revenue Court, the Board should give notice thereof to such Court in the prescribed manner. The section goes on to say that on receipt of such notice the suit or proceeding in question shall be stayed in the Court in which such suit or proceeding is pending. It is however clear that no Court, situated in a district in which the Act has not been brought into force can be compelled to issue the stay order contemplated in the latter portion of Section 34, Bengal Agricultural Debtors Act, and, in order to obtain a stay order of the nature contemplated by Section 34, it follows that the Act must be in operation both in the district in which the Board is situated to which an application is made for the settlement of a debt and also in the district in which the Court is situated to which the notice under Section 34 of the Act is actually sent. In my opinion, the order of the learned Subordinate Judge is quite correct and we cannot possibly interfere with it under Section 115, Civil P.C.


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