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PulIn Behari Das and anr. Vs. Syed Reasat Ali and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Reported inAIR1941Cal156
AppellantPulIn Behari Das and anr.
RespondentSyed Reasat Ali and ors.
Cases ReferredNur Miya v. Noakhali Nath Bank Ltd.
Excerpt:
- .....all proceedings in execution on account of the fact that the appellants had approached the debt conciliation board at sylhet for the settlement of their debts, including the debt covered by the decree which was the subject-matter of the above-mentioned execution proceedings. the admitted facts of the case are briefly as follows : on 7th february 1934, the decree-holders obtained a decree against the appellants for the sum of rs. 666. thereafter, on 8th february 1937, the decree-holders put this decree into execution in execution case no. 91 of 1937. on 27th february 1937, an order was recorded by the court to the effect that the application for execution was time-barred, but on the same day the decree-holders filed a petition for the reconsideration of this order under section.....
Judgment:

Edgley, J.

1. This appeal is directed against the order of the learned District Judge of Sylhet, dated 10th March 1939, under which he dismissed an appeal against the decision of the trial Court, in which the learned Munsif directed that certain proceedings taken in Execution Case No. 362 of 1938 should proceed.

2. The main points urged on behalf of the appellants in this case are (1) that the application for execution was barred by limitation and (2) that the Courts below should have suspended all proceedings in execution on account of the fact that the appellants had approached the Debt Conciliation Board at Sylhet for the settlement of their debts, including the debt covered by the decree which was the subject-matter of the above-mentioned execution proceedings. The admitted facts of the case are briefly as follows : On 7th February 1934, the decree-holders obtained a decree against the appellants for the sum of Rs. 666. Thereafter, on 8th February 1937, the decree-holders put this decree into execution in Execution Case No. 91 of 1937. On 27th February 1937, an order was recorded by the Court to the effect that the application for execution was time-barred, but on the same day the decree-holders filed a petition for the reconsideration of this order under Section 151, Civil P. C. On 1st March 1937, the execution case was revived and the application for execution was duly registered, but two days later, this execution case was dismissed for de-fault. On 7th February 1938, the judgment-debtors applied to the Debt Conciliation Board at Sylhet for the settlement of the debts due from them to all their creditors and their application apparently included the debt due to the respondents under the decree in Money Suit No. 1569 of 1933. On 11th April 1938 it appears that the judgment-debtors produced before the Board a certified copy of the order, dated 27th February 1937, under which the decree-holders' application for execution had been rejected as being time-barred, but they did not disclose the fact that a few days later this application had been restored on the decree-holders' petition under Section 151, Civil P. C. After perusal of the order of the learned Munsif, dated 27th February 1937, the Debt Conciliation Board held that the debt due on the decree in Money Suit No. 1569 of 1933 was not subsisting as it was time-barred. On 5th May 1938 the decree-holders applied to the Board for a review of this order under Section 19, Assam Debt Conciliation Act but their application was rejected. On 13th September 1938, the decree-holders again applied to the Court for the execution of this decree and it was in connexion with this application for execution that the judgment-debtors raised two objections: (1) to the effect that the application for execution was barred by limitation and (2) that the civil Court had no jurisdiction to deal with the matter in view of the orders which had been passed with reference thereto by the Debt Conciliation Board.

2. As regards the question of limitation the main argument of the learned advocate for the appellants in this case is that the previous application for execution, which was filed on 8th February 1937, cannot be regarded as an application in accordance with law within the meaning of Article 182 (5), Limitation Act, and he relies on certain irregularities connected with the filing of the application for execution, to which reference has been made in the judgment of the learned District Judge. For instance, it would appear that the correct number of the suit had not been mentioned and the amount for which the decree was passed was incorrectly given. The defects in the form of the application, such as they were, were not material and might easily have been remedied if the Court had followed the provisions of O.21, Rule 17 (1) of the Code, which it failed to observe. Moreover, the Court wrongly' assumed that the application was time-barred, and in my view the order rejecting it which was made on 27th February 1937 was obviously illegal.

3. I am in entire agreement with the learned Judge in the opinion which he records to the effect that the execution proceedings in connexion with this matter were inefficiently conducted by the Court and the ministerial officers concerned. It would appear that, in connexion with this matter, no large measure of blame can be attached to the decree-holder and, in any case, the record shows that, on 1st March 1937, the application for execution was duly registered under the provisions of Order 21, Rule 17 (4), Civil P. C. The judgment-debtors took no steps to have this order for registration set aside and, this being the case, it must be regarded as a legal and valid order. In this connexion, it has been argued that the executing Court had no jurisdiction to revive the execution case on 1st March 1937 under the provisions of Section 151, Civil P. C. Having regard to the special circumstances of the case, I am not prepared to say that in this particular case the executing Court acted illegally in making the order under Section 151 of the Code but, in any event, if the judgment-debtors felt themselves aggrieved by this order, they should have moved this Court in revision under Section 115, Civil P. C, for its modification. This they failed to do. In view of the circumstances set forth above, I am of opinion that the proceedings in Execution Case No. 91 of 1937 were taken in accordance with law. The latter case was dismissed on 3rd March 1937 and, as the application in the present case was filed on 13th September 1938, it is clear that the present execution proceedings were taken in proper time.

4. As regards the second objection which has been urged on behalf of the appellants, the trial Court held that the order recorded by the Debt Conciliation Board on 11th April 1938 was made without jurisdiction and the learned District Judge was of the opinion that, as regards the debt which was the subject-matter of the execution proceedings, there had been no final adjudication by the Debt Conciliation Board and, therefore, it could not be said that the civil Court had no jurisdiction to deal with the matter. Prom the provisions of the Assam Debt Conciliation Act, 1936, it would appear that, under Section 8 (1) of the Act, if the Board after examining the debtor considers it desirable to effect a settlement between him and his creditors, it is enjoined to call upon every creditor of the debtor to submit a statement of debts owed to such creditor by the debtor. Sub-section (2) goes on to say that:

Every debt of which a statement is not submitted to the Board in compliance with the provisions of Sub-section (1) shall be deemed for all purposes and all occasions to have been duly discharged.

5. On behalf of the judgment-debtors in this case it was suggested during the course of the argument that the order, dated 11th April 1938, had the effect of discharging the debt within the meaning of Section 8 (2) of the Act and, in this view, it was urged that the jurisdiction of the civil Court would be barred by the provisions of Section 16 (4) of the Act. I am not prepared to accept this contention. The abovementioned order indicates that the creditors had in fact submitted a statement of their debts but that they had failed to file any document in support of their claim as contemplated by the provisions of section 9 of the Act. It, therefore, follows that the order cannot be regarded as falling within the purview of Section 8 (2) of the Act. In effect, the order in question merely amounted to a decision on the part of the Board that they had no jurisdiction to deal with this particular debt as it was barred by limitation. As regards the question of the jurisdiction, it is provided by Section 7 of the Act that the Board may at any stage dismiss an application for want of jurisdiction and there is a further provision in Sub-section (3) of Section 8 to the effect that the decision of the Board with regard to jurisdiction under Section 7 or Section 8 shall be final and shall not be questioned in any civil Court. Having regard to the terms of the order which was recorded on 11th April 1938, I must hold that it merely amounted to a decision that the Board had no jurisdiction to deal with the matter. In this view of the case I consider that the civil Court would be competent to deal with any application for the execution of the decree, which might thereafter be filed in such Court, and to decide for itself in those proceedings whether the debt was in fact time-barred.

6. In this connexion, it has been suggested by the learned advocate for the appellants that the order, dated 11th April 1938, should be taken as a final determination of the Board to the effect that the debt did not exist, which would prevent the question of the existence of such debt being again raised directly or indirectly in the civil Court. In other words, it is contended that a Debt Conciliation Board in Assam would have an inherent final jurisdiction to determine questions relating to the existence and amount of a debt such as has been expressly conferred upon Debt Settlement Boards in Bengal under the provisions of Section 18, Bengal Agricultural Debtors Act. I am not prepared to accept this argument. Of course, a question relating to the amount or existence of a debt might have to be considered incidentally (e. g., under Section 4 of the Act) in order to enable a Board to decide whether or not it had jurisdiction to deal with a particular application. The Boards's decision on the question of jurisdiction would be final under Section 8 (3) of the Act. At the same time, under this subsection, finality only attaches to the actual decision with regard to jurisdiction and not to any incidental finding on which that decision may be based. The general principles which regulate the scope of the authority of the civil Court with regard to Debt Settlement Boards in Bengal have been summarized by Ghose J. as follows in Nur Miya v. Noakhali Nath Bank Ltd. : AIR1939Cal298 :

In some of the reported oases, this Court has pointed out that the Act has set up its own tribunal and has laid down the principle that where the Act has expressly provided that certain matters are to be decided by that tribunal the civil Court must refrain from going into those matters, but where there is no express provision in respect of the tribunal under the Act, the ordinary Court must act in the exercise of its powers.

7. If the principle formulated above be applied in respect of the order of the Board, dated 11th April 1938, it appears that finality only attaches to the order in so far as it purports to decide that the Board had no jurisdiction to deal with the matter, but, in so far as the order may have purported to decide whether the alleged debt was in existence or its amount, no finality would attach thereto. If it had been the intention of the Legislature to confer exclusive jurisdiction upon Debt Conciliation Boards to decide questions of fact with regard to the existence or amount of debts, some provision on the lines of Section 18, Bengal Agricultural Debtors Act, would have been inserted in the statute but this has not been done. In my judgment therefore even if the decision of the Board, dated 11th April 1938, could be regarded as a determination to the effect that the alleged debt did not exist, this would not have the effect of ousting the jurisdiction of the civil Court under Section 8 (3) of the Act. Further, the matter clearly does not come within the purview of Section 16 of the Act. This contention must accordingly be overruled. Finally, it has been argued by the learned advocate for the appellants in this case that the civil Court should have suspended all further proceedings in the matter under the provisions of Section 21 (1), Assam Debt Conciliation Act, which is in the following terms:

When an application has been made to a Board under Section 4, any suit or other proceedings then pending before a civil Court in respect of any debt for the settlement of which application has been made shall be suspended until the disposal of the application.

8. It is true that the debt in respect of the decree for Rs. 666 which was obtained on 7th February 1934, was included in the original application to the Debt Conciliation Board, but the order of the Board which was recorded on 11th April 1938, must be regarded as disposing of the application in respect of that particular debt inasmuch as it amounted to a decision that the Board had no jurisdiction to deal with the matter. It therefore follows that the civil Court was under no obligation to suspend the execution proceedings in connexion with that decree after the order of 11th April 1938 had been recorded by the Board. In my view the decision of the lower appellate Court is correct. I consider that the appellants have failed to show that the application, dated 13th September 1938, was time-barred and it is also clear that the jurisdiction of the civil Court to deal with this matter has not been curtailed by anything contained in the provisions of the Assam Debt Conciliation Act of 1936. The judgment of the lower appellate Court is therefore affirmed and this appeal is dismissed with costs. The hearing fee is assessed at 3 gold mohurs.


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