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Biraja Mohan Bhattacharjee Vs. Abaninath Pandit - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1942Cal227
AppellantBiraja Mohan Bhattacharjee
RespondentAbaninath Pandit
Excerpt:
- .....meaning of section 2 of the act. the appellant was therefore entitled to go before a board and the board had jurisdiction to deal with his case. the real point is not whether the order was without jurisdiction but whether it is an order under section 13 of the act at all. sub-section (2) provides that if a creditor fails to comply with the notice, the board may make an order declaring that the amount of any debt due to him shall be deemed to be the amount stated in the statement of the debt, that is to say, the board could have made an order to the effect that the debt is rupees 287-14-6. the one thing that it is impossible for a board to do is to make an order saying that the debt is nil. it is impossible for a debtor to file an application stating that one of his debts is nil. this.....
Judgment:

Henderson, J.

1. This appeal is by the judgment-debtor. He is a pleader. Some how Or other he has managed to go before a Debt Settlement Board on the plea of being an agriculturist. The debt is for a sum of Rs. 287-14-6 which was awarded to the respondent as costs in a suit brought by the appellant. This was the only debt in the application and at any rate there is this to be said in favour of the appellant that he did not try to minimise it in his application to the Board. That being the position, the Board, because there was apparently some confusion in filling up a form, reached the astounding decision that the debt was nil. This is supposed to have been an order passed under Section 13(2) of the Act. Having got this decision for what it was worth, the appellant then returned to the executing Court and made an application under Section 47, Civil P.C. His contention was that the civil Court was debarred from questioning this decision and the delightful result was that there was nothing left to execute. The Munsif accepted this view and dismissed the respondent's execution case. The respondent appealed. The learned Judge held that the order of the Board was made without jurisdiction and directed that the execution case should go on. The judgment-debtor has now appealed to this Court. As a result of the arguments advanced, I have reached the conclusion that neither of these decisions is correct.

2. The first question is whether the learned Munsif was right when he decided that this debt ceased to exist. In my judgment the learned Judge went too far when he said that the Board had no jurisdiction to make an order. It is not disputed that the liability is a debt within the meaning of Section 2 of the Act. The appellant was therefore entitled to go before a Board and the Board had jurisdiction to deal with his case. The real point is not whether the order was without jurisdiction but whether it is an order under Section 13 of the Act at all. Sub-section (2) provides that if a creditor fails to comply with the notice, the Board may make an order declaring that the amount of any debt due to him shall be deemed to be the amount stated in the statement of the debt, that is to say, the Board could have made an order to the effect that the debt is rupees 287-14-6. The one thing that it is impossible for a Board to do is to make an order saying that the debt is nil. It is impossible for a debtor to file an application stating that one of his debts is nil. This particular order of the Board was therefore not an order under Section 13 at all and, in my judgment, it has no legal effect of any sort.

3. That, however, is not sufficient to dispose of the appeal. Another question arises which is taken in ground No. 11 attached to the petition which is to the effect that the Court is still bound to stay proceedings in accordance with the notice issued under Section 34. Now, I should find it extremely difficult to say that an order which has no legal effect could be said to terminate the proceedings before the Board. Mr. Lahiry first contended that a proper order made under the terms of the section disposes of the case. The only effect of a proper order would be that the respondent would be prevented from saying at some subsequent stage that the debt was more than Rs. 287-14-6. But the debt as settled by the Board under Sub-section (2) would still be before it and require to be dealt with either by an award or by an order of dismissal. I can see no escape from the conclusion that an order under Section 13(2) does not terminate proceedings before the Board. When a proper order has not that effect, it would be quite idle to contend that an illegal order, which is not an order at all within the meaning of the section has such effect. The position therefore is that the appellant's case is still pending before the Board and until it is disposed of in some way or other, notice under Section 34 remains a good notice.

4. The question of costs presents some difficulty. The respondent is certainly entitled to his costs in the first Court. In the lower appellate Court each side put his case too high. In this Court, Mr. Lahiry finally abandoned his contention that he is entitled to go on with the execution and so has been substantially successful. The result is that the orders of both the Courts below are set aside and I direct the respondent's execution case be kept pending in pursuance of the notice under Section 34, Bengal Agricultural Debtors Act. The appellant will pay the costs of the respondent in the first Court and in this Court. I assess the hearing fee at two gold mohurs. Each side will bear his own costs in the lower appellate Court.


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