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Mt. Masiha Khatun Vs. Ulatannessa Bibi Widow of Haji Mahummad Yusuf Mia and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1941Cal222
AppellantMt. Masiha Khatun
RespondentUlatannessa Bibi Widow of Haji Mahummad Yusuf Mia and ors.
Excerpt:
- .....under section 34, bengal agricultural debtors act, staying the suit. on 24th november 1939, the learned subordinate judge before whom the suit was pending recorded the following order:it appears that the suit is one for ejectment and not in respect of any debt. in the circumstances, the notice cannot be given effect to, inform the board accordingly.3. it is against this order that the present rule is directed. the opening words of section 34 of the act are as follows;when an application under section 8 or a statement under sub-section (1) of section 13 includes any debt in respect of which a suit or other proceeding is pending before a civil or revenue court...4. the petitioner contends that the suit pending in the court of the learned subordinate judge which was in form a suit for.....
Judgment:
ORDER

1. The facts out of which this rule arises may be very shortly stated as follows: The opposite party instituted the suit against the husband of the petitioner for ejectment. During the pendency of that suit the petitioner's husband appeared and alleged that he had sold his interest to the petitioner. The petitioner was accordingly brought upon the record as a defendant. Issues were framed on 7th August 1939. Our attention has been invited to issues 3 and 4 which are in these terms:

No. 3.-Did defendant 1 sell the property in suit to Haji Md. Yusuf as alleged by the plaintiff or was the property in suit kept under mortgage to Haji Yusuf as alleged by the defendant?

No. 4-Does the amount mentioned in the kabuliyat represent monthly rent of the house and is the defendant a monthly tenant as alleged by the plaintiffs or is the amount interest on the loan as alleged by the defendant?

2. At the instance of the petitioner, the Debt Settlement Board issued on 27th September 1939, a notice under Section 34, Bengal Agricultural Debtors Act, staying the suit. On 24th November 1939, the learned subordinate Judge before whom the suit was pending recorded the following order:

It appears that the suit is one for ejectment and not in respect of any debt. In the circumstances, the notice cannot be given effect to, inform the Board accordingly.

3. It is against this order that the present rule is directed. The opening words of Section 34 of the Act are as follows;

When an application under Section 8 or a statement under Sub-section (1) of Section 13 includes any debt in respect of which a suit or other proceeding is pending before a civil or revenue Court...

4. The petitioner contends that the suit pending in the Court of the learned subordinate Judge which was in form a suit for ejectment was not maintainable, that she was not a tenant under the opposite party and that the document on which the latter relied to prove the relationship of landlord and tenant showed no more than this that the husband of the petitioner had borrowed money from the opposite party upon a mortgage of the house from which the opposite party was seeking to evict the petitioner. The issues framed in the suit which are set out above show that the real question there was whether there was a mortgage debt. If this question were answered in the affirmative, it would unquestionably bring the matter within the language of Section 34 of the Act. In these circumstances we feel that the learned subordinate Judge has erred in not taking into consideration the real question in the suit before him. If the learned subordinate Judge had looked into the circumstances of the case, he would have been bound to hold that the question in dispute related to what, according to the contentions of one of the parties in the suit was undoubtedly a debt. The question whether a person is a debtor or not or whether the liability is a debt or not is a question which under Section 20 of the Act can be decided by the Board alone. It is accordingly clear that the learned subordinate Judge should have stayed the suit in compliance with the notice under Section 84, Bengal Agricultural Debtors Act. This rule is made absolute. We make no order as to costs.


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