1. This appeal is by two persons who are not judgment-debtors in the execution case. I may just as well say at once that they are the daughter-in-law and the minor son of the judgment-debtors. The fact that they filed this appeal is due to the refusal of the Munsif to obey a notice under Section 34, Bengal Agricultural Debtors Act, in connexion with an application filed by them under the provisions of the Act. The relevant facts are these : The respondent obtained a decree in a rent suit against one Jagadish Chandra Roy, His attempt to execute the decree was successfully baffled by Jagadish who made two applications to boards under the provisions of the Bengal Agricultural Debtors Act. Those applications have been dismissed and there is no longer anything to prevent the respondent from executing the decree which he obtained against Jagadish. On 6th November 1940, however, Jagadish transferred 12 annas share in the putni to the present appellants. The appellants made an application under Section 8, Bengal Agricultural Debtors Act. The board sent a notice under Section 34. The Munsif refused to stay proceedings and an appeal in the District Court was unsuccessful. Although the appellants are not personally liable for the decretal amount they are bound to pay it if they wish to save the putni. They are certainly entitled to make a case that this liability is a debt within the meaning of Section 2(8) of the Act, and under Section 20 of the Act it is for the board to decide whether this liability is a debt or not. Proceedings to realise the money must therefore be stayed on receipt of a notice under Section 34. I can see no difficulty in that.
2. The point which the Munsif had to decide therefore was whether on receipt of this notice in connexion with an application by the appellants he was bound to stay the execution proceedings taken against Jagadish. There would have been no difficulty in making a suitable order apart from the provisions of the new Section 168A, Ben. Ten. Act. The appropriate order would be that execution should go on against Jagadish but that the tenure should not be brought to sale. Mr. Das suggested that the tenure should be put up to sale in compliance with the terms of that new section and that he should run the risk that it would be discovered that the interest of Jagadish was only 4 annas. Under the terms, however, of the section it is not possible to put up to sale the interest only of Jagadish. The whole tenure has to be put up to sale and in view of the right of the appellants to save the property this cannot be done unless their application before the board has been disposed of. There is, however, one other matter which requires to be determined. It is of course not surprising that the respondent's case should be that the appellants are benamidars of Jagadish. Of course if they are, they have no interest in the tenure and there is no reason why the execution case should not go on.
3. This accordingly raises the question whether a matter of this kind has to be decided by the board or the civil Court. I am quite clear that it must be decided by the latter. Under Section 20 of the Act the board has to decide whether the appellants are debtors or not or whether their liability to deposit the decretal amount to save the property is a debt or not. That section must be interpreted with reference to the definitions in Section 2. The definition of 'debtor' is to be found in Section 2, Sub-section (9). It will be for the board to determine whether the appellants are what may be loosely described as agriculturists or whether they are persons who have no right to avail themselves of the benefits of this Act. There is nothing to suggest that it is the duty of the board to decide whether a transfer of property by some-body else who is not before the board at all is a mere benami transaction. Such a question has nothing to do with the settlement of the debts of an agriculturist and is outside the scope of Section 20 of the Act. In my judgment therefore, it must be decided by the civil Court. The appeal is accordingly allowed, the orders of both the Courts below are set aside and the Munsif is directed to decide whether the appellants are the benamidars of the judgment-debtor. If they are, he will proceed with the execution; if they are not, he will stay proceedings in compliance with the notice served under Section 34 of the Act. Both sides will be at liberty to adduce evidence. Costs in this Court and in the lower appellate Court will abide the result, hearing fee two gold mohurs.