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Gobinda Chandra Saha and anr. Vs. Rashmoni Dassya W/O Gobinda Chandra Saha - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1943Cal470
AppellantGobinda Chandra Saha and anr.
RespondentRashmoni Dassya W/O Gobinda Chandra Saha
Cases ReferredNara Naryan Mandal v. Aghore Chandra Ganguli
Excerpt:
- .....order dated 3rd october 1942, made by the additional district judge, mymensingh under section 40a, bengal agricultural debtors' act, reversing an order passed by the appellate officer of kishoregunj under section 40 of the same act. the material facts are not in dispute and may be shortly stated as follows : the petitioners before us advanced a sum of rs. 35,000 to the husband of the opposite party on the basis of a simple mortgage bond executed by the latter on 13th december 1928. the petitioners instituted a suit for enforcement of the mortgage, and recovered a preliminary decree for a sum of about rs. 40,000 on 19th february 1937. on 25th may 1937, the decree was made final. the final mortgage decree was put into execution in title execution case no. 66 of 1937 of the court of the.....
Judgment:

Mukherjea, J.

1. This rule is directed against an order dated 3rd October 1942, made by the Additional District Judge, Mymensingh under Section 40A, Bengal Agricultural Debtors' Act, reversing an order passed by the Appellate Officer of Kishoregunj under Section 40 of the same Act. The material facts are not in dispute and may be shortly stated as follows : The petitioners before us advanced a sum of Rs. 35,000 to the husband of the opposite party on the basis of a simple mortgage bond executed by the latter on 13th December 1928. The petitioners instituted a suit for enforcement of the mortgage, and recovered a preliminary decree for a sum of about Rs. 40,000 on 19th February 1937. On 25th May 1937, the decree was made final. The final mortgage decree was put into execution in Title Execution case No. 66 of 1937 of the Court of the Sub-Judge at Mymensingh and a few days after the execution case was Started, the judgment-debtor on 27th June 1937, presented an application before the Domepara Debt Settlement Board for settlement of all her debts under Section 8, Bengal Agricultural Debtors' Act. On 2nd July 1937, the Debt Settlement Board issued a notice under Section 34, Agricultural Debtors' Act, in pursuance of which further proceedings in execution were stayed. On 14th June 1939, the Debt Settlement Board purported to determine the debts of the opposite party under Section 18, Bengal Agricultural Debtors' Act. The total amount of debts was much in excess of Rs. 25,000, and the new rules under which the jurisdiction of Debt Settlement Boards to settle debts of this description was taken away came into force on 15th June 1939. It appears that the opposite party did not pay the fees which she was ordered to pay by the Debt Settlement Board under Rule 139(1) of the, Rules framed by the Local Government, within 15th June 1939; and the Collector of Mymensingh by his order dated 24th April 1940, directed the proceedings before the Board to be struck off, being of opinion that the determination of the debts being not completed before 16th of June 1939, the new rules came into operation and the Debt Settlement Board had no jurisdiction to proceed further in the matter.

2. In accordance with this order, the proceedings were finally dismissed by the Debt Settlement Board on 15th August 1940. The notice under Section 34, Bengal Agricultural Debtors' Act being withdrawn in the meantime the execution case was allowed to proceed. The opposite party thereupon filed a suit for a declaration that the order of the Collector dated 24th April 1940, was illegal and ultra vires. She also preferred objections under Section 47, Civil P.C., to the execution proceedings started by the petitioners where this identical point was raised. On 8th July 1940, the application under Section 47, Civil P.C., was dismissed and an appeal taken against that order of dismissal to this Court was withdrawn on 16th February 1942. The declaratory suit was dismissed on 7th April 1941, and it was held by the Court, that the order of the Collector was neither illegal nor ultra vires. In the meantime the mortgaged property was sold and purchased by the decree-holder. The opposite party thereupon made an application for setting aside the sale under Order 21, Rule 90, Civil P.C. That proceeding, we are told, is still pending. On 12th April 1942, the opposite party presented an application before the Debt Settlement Board, Domepara, for review of its order dated 15th August 1940. The Board declined to entertain the application for review at this late stage and asked the judgment-debtor to get sanction from the Collector. This sanction the opposite party failed to obtain and on 7th June 1942, the application for review was rejected by the Board. On 18th June 1942, the opposite party moved the Collector for setting aside his original order dated 24th April 1940, and this application was rejected on 22nd July following. On 3rd August 1942, an appeal was taken against this order of the Collector to the Appellate Officer, Kishoregunj, and the appellate officer dismissed the appeal on the same day holding inter alia that the appeal was time barred. Against this order of the Appellate Officer the judgment-debtor filed a petition of revision under Section 40A, Bengal Agricultural Debtors' Act. The Additional District Judge, Mymensingh, to whom the case was transferred, reversed the order of the Collector dated 24th April 1940, and that of the Board made on 15th August 1940, and directed the Board to proceed with the matter from the stage at which it was left. It is against this decision of the Additional District Judge of Mymensingh that the pre-sent rule has been obtained.

3. On hearing the learned advocates on both sides, it seems to us that the order of the Additional District Judge is not justified by the circumstances of the case and the clear provisions of Section 40A, Bengal Agricultural Debtors' Act. It may be an arguable point as to whether or not the determination of a debt can be said to be complete unless the fees directed to be paid under Rule 139(1) of the Rules framed under the Bengal Agricultural Debtors' Act are paid. But assuming that the payment of fees was quite a subsidiary and a fiscal matter, which did not affect the finality of the determination of a debt by the Board under Section 18, Bengal Agricultural Debtors' Act, the order against which the revision petition was filed was not the order of the Board dated 15th August 1940, or that of the Collector made on 24th April 1940; it was directed against the order of the Appellate Officer dated 3rd August 1942, by which he dismissed the appeal taken to him against the order of the Collector dated 22nd July 1942. If the position taken up by the opposite party is correct, it was open to her to take an appeal to the appellate officer from the final order of dismissal made by the Debt Settlement Board on 15th August 1940. Instead of doing that she filed a declaratory suit in the Civil Court challenging the order of the Collector as illegal and ultra vires. She raised the same objection by way of an application under Section 47, Civil P.C. In both these proceedings the decision was adverse to her, and it was held that the order of the Collector was neither illegal nor without jurisdiction. The application for review of the order of the Debt Settlement Board was filed, on 12th April 1942, and as nearly two years had already elapsed from the date of the order sought to be reviewed, the Board was perfectly right in refusing to entertain the application without the sanction of the Collector. There is no provision in the Act for reviewing an order of the Collector; it is the order of the Board or of the Appellate Officer that can be reviewed under Section 44, Bengal Agricultural Debtors' Act. No appeal also lies from an order of the Collector under Section 40 of the Act. If the appeal that was taken by the opposite party to the Appellate Officer, Kishoregunj, be regarded as an appeal from the order of the Debt Settlement Board rejecting the application for review, it was clearly time barred.

4. We think therefore that there was nothing illegal or improper in the order of the appellate officer against which the application for revision under Section 40A, Bengal Agricultural Debtors' Act, was filed by the opposite party. We think further that the interests of justice did not call for an interference by the Additional District Judge in this case. Instead of going straight to the appellate officer when the application for settlement of debts was dismissed by the board, the opposite party proceeded to test the legality of the proceeding by instituting a regular suit in the Civil Court. The decision was unfavourable to her. She could not also succeed in the miscellaneous proceeding started under Section 47, Civil P.C. After carrying on a protracted litigation for nearly two years, she eventually filed an application for review of the order originally made by the Debt Settlement Board, although the remedy was quite open to her from the very beginning. In our opinion the application for review was justly rejected by the Debt Settlement Board, and it would be really an abuse of the processes of law, if the opposite party is now allowed to rake up all the previous proceedings. We hold therefore that the Additional District Judge was not justified in reversing the order of the appellate officer under Section 40A, Bengal Agricultural Debtors' Act.

5. The learned advocate for the opposite party in course of his argument raised a point as to the maintainability of this application for revision under Section 115, Civil P.C. He has argued that the Additional District Judge in exercise of his powers under Section 40A, Bengal Agricultural Debtors' Act, was not acting as a Court and consequently his orders are not revisable by us under Section 115, Civil P.C. The question we must say is not altogether free from doubt. The Bengal Agricultural Debtors' Act is undoubtedly a special Act which confers special jurisdiction upon the tribunal set up by it to determine questions as to rights which are the creation of the Act. In such circumstances the legitimate conclusion is that the rights are to be determined in the manner prescribed by the Act itself to which they owe their existence and the jurisdiction, that is conferred on the special tribunal is exclusive. This is clear from the provisions of Sections 33 to 36, Bengal Agricultural Debtors' Act, which are intended to stay the hands of the Civil Court or to render its decisions nugatory, when they come into conflict with anything done by the Board. But these provisions do not by themselves take away the jurisdiction of the High Court to interfere under Section 115, Civil P.C., with an order made by a Court which is subordinate to it. Section 38, Bengal Agricultural Debtors' Act, provides that no appeal or application for revision shall lie against any decision or order of or award by a Board except as provided in the Act. The High Court obviously has no powers of revision in respect to an order made by a Debt Settlement Board as the latter is neither a Court nor a Court subordinate to the High Court. The same view has been taken, and in our opinion correctly, with regard to oar powers of revision in respect to orders made by an appellate officer under Section 40, Bengal Agricultural Debtors' Act.

6. To quote the words used by Sir George Rankin in 26 Allen Bros. & Co. v. Bando & Co. ('23) 10 A.I.R. 1923 Cal. 169, there is no thread of connecting authority by which a relation is established between this Court and an appellate officer appointed under the Bengal Agricultural Debtors' Act : vide Abdulla v. Giridhari Lal : AIR1938Cal448 ; Ramkrishan v. Ali Newaz ('38) 25 A.I.R. 1938 Cal. 668. But the position seems to us to be different with regard to orders made by the District Judge or Additional District Judge under Section 40A of the Act. This section empowers a District Judge to determine certain matters of a judicial character which lie outside his ordinary jurisdiction under the law. If the intention of the Legislature is that the District Judge should determine the matter as a Court and the effect of the provision is merely to enlarge his ordinary jurisdiction, it goes without saying that the normal incidents of such jurisdiction including the rights of revision and appeal from its orders would remain intact : The National Telephone Co. v. Post Master General (No. 2). If on the other hand the authority is to be exercised by the District Judge not as a Court but as persona designata obviously its decisions could not be revised by this Court. When the jurisdiction is given to a judicial officer by name it is no doubt a difficult question to decide as to whether the jurisdiction is to be exercised by the person or by the Court itself over which he presides. The proviso to Section 40A, Bengal Agricultural Debtors' Act, in our opinion throws some light on this point. That proviso empowers the District Judge to transfer all the functions which he can exercise under Section 40A, Bengal Agricultural Debtors' Act, to an Additional District Judge, subordinate to him. This is a circumstance which can be held to indicate that the District Judge is to exercise the authority not in his personal capacity but as a Court, for as persona designata he cannot have any judicial officer subordinate to him. As was said by Schwabe Parthasaradhi Naidu v. Kotesawara Rao ('24) 11 A.I.R. 1924 Mad. 561 it is impossible to hold that a reference to a Judge with power to refer to a Court subordinate to him can mean anything else than reference to a Judge sitting as a Judge in the exercise of his ordinary jurisdiction extended for that purpose.

7. The same view was taken in this Court in Nara Naryan Mandal v. Aghore Chandra Ganguli ('35) 63 Cal. 136. It cannot be argued that the District Judge was merely empowered by this proviso to delegate his authority as persona designata to another officer who was also mentioned by name; for it is always possible to have more than one Additional District Judge in a particular district at a particular time. It is true that under Section 40(6), Bengal Agricultural Debtors Act, the orders of the appellate officer have been declared to be final subject to the pro visions of Section 40A. This means that the order of an appellate officer cannot be challenged in any other proceeding or before any other tribunal except as provided by Section 40A. The order of the appellate officer cannot certainly be challenged by way of revision in this Court but the moment it is held that the authority that the Legislature has conferred on the District Judge, under Section 40A of the Act, is exercisable by the latter as a Court, and not as persona designata, the revisional jurisdiction of the Court in respect to orders made by a subordinate Court would be automatically attracted, unless these powers are taken away by express legislation. We hold therefore that an order made by the District Judge or Additional District Judge under Section 40A, Bengal Agricultural Debtors' Act, is open to revision by this Court under Section 115, Civil P.C. The result is that the rule is made absolute. The order of the Additional District Judge dated 3rd October 1942, is set aside. No order as to costs.

Blank, J.

8. I agree.


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