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Hazareemull Heeralal Vs. Balaram Chatterjee and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1943Cal640
AppellantHazareemull Heeralal
RespondentBalaram Chatterjee and anr.
Cases ReferredTaraknath Kundu v. Panchanan Dutt
Excerpt:
- .....of the bengal, agra and assam civil courts act of 1887. the high court was established by the high courts act of 1861 (24 and 26 vict. chap. 104). section 9 of that act provided that the high courtshall have and exercise all such civil, criminal, admiralty and vice-admiralty, testamentary, intestate and matrimonial jurisdiction original and appellate and all such powers and authority for and in relation to the administration of justice in the presidency for which it is established, as her majesty may by such letters patent as aforesaid grant and direct, subject, however, to such directions and limitations as to the exercise of the original civil and criminal jurisdiction beyond the limits of the presidency towns as may be prescribed thereby; and, save as by such letters patent may.....
Judgment:
ORDER

Das, J.

1. Two matters were mentioned before me namely, suit No. 1467 pf 1936, Durgadutt Jalan v. Rai Charan Monmohan Saha and suit No. 528 of 1942, Hazarimull Heeralal v. Balaram Chatterjee and Anr. I propose to dispose of both the matters by this judgment. Money decrees were passed in each of the two suits and thereafter applications were made in each of the two suits for transmission of the decrees to different Courts of the District Judge within whose respective jurisdiction the judgment-debtors were alleged to have properties so as to enable the respective plaintiffs to take execution proceedings in those respective Courts. On each of those applications the usual order for transmission was made, in the first case (Suit No. 1467 of 1936) by Khundkar J. and in the second case (suit No. 528 of 1942) by the learned Master of this Court.

2. It appears, however, that the judgment-debtors in both the suits had, in the meantime, sought to take the benefit of the provisions of the Bengal Agricultural Debtors' Act 1935, and notice under Section 34 of the said Act had been sent to this Court from the respective Debt Settlement Boards within whose jurisdiction the respective debtors resided. The respective attorneys for the plaintiffs in both the suits having pressed the Execution Department of this Court for actual transmission of the 9 decrees, they were informed by the Registrar of this Court that the service of the notice by the Debt Settlement Boards operated as stay in view of the amendment made in Section 2, Bengal Agricultural Debtors' Act, by insertion of sub Section 6(A) by Act 8 of 1940 after the decision of the Special Bench of this Court made on appeal from the Narsingdas Tansukdass v. Chhogmull reported in ('39) 26 A.I.R. 1969 Cal. 435 and that in the circumstances the certified copy of decree and other proceedings could not be transmitted to the District Court for execution unless they applied to Court and obtained the necessary direction. The two matters were accordingly mentioned before me by Mr. B.C. Dutt, Advocate for the plaintiff in Suit No. 1467 of 1936 and Mr. H.C. Majumder counsel for the plaintiff in Suit No. 528 of 1942. The two matters stand on exactly the same footing except that in second case (Suit No. 528 of 1942) the debt which merged in the decree in that suit accrued after 1st January 1940. I have now heard Mr. Dutt and Mr. Majumder both of whom contended that even after the amendment referred to by the Registrar, the provisions of the Bengal Agricultural Debtors' Act did not affect the decrees passed by this Court in exercise of its ordinary original civil jurisdiction. Nobody has appeared for the defendants and I have not had the advantage of hearing any argument in opposition to the arguments advanced by Mr. Dutt and Mr. Majumdar.

3. The Bengal Agricultural Debtors' Act, 1935, was passed in 1936. In December 1937 the case in Narsingdas v. Chhogmull : AIR1938Cal402 came up before Panckridge J. In that case a decree had been passed by this Court in exercise of its ordinary original civil jurisdiction and receivers were appointed in execution of the decree. Thereafter a notice came from a Debt Settlement Board under Section 34, Bengal Agricultural Debtors' Act. The plaintiffs in that suit pressed the receivers to take steps to put up certain properties for sale but the defendants in that suit contended that the notice from the Debt Settlement Board operated as stay of the execution proceedings. The receivers thereupon applied to Court for directions. Panekridge, J. gave effect to the contentions of defendants in that suit and dismissed the application of the receivers. In Brojobashi Roy v. Nagarbashi Choudhury : AIR1938Cal362 which was decided by Edgley, J., in January 1938 the question whether the Act affected the High Court was left open. Indeed it was not necessary for the learned Judge to decide the question. Baijnath v. Tormull : AIR1938Cal455 was decided by Ameer Ali J. in February 1938. This case was also concerned with a decree passed by this Court in exercise of its ordinary original civil jurisdiction which had been transmitted to the Dumka Court for execution. Ameer Ali J. held that the High Court was a 'civil Court' within the meaning of the Act. In Satish Chandra v. Nowgaon Union Bank Ltd. : AIR1938Cal753 an appeal was pending in the appellate side of this Court from an order of adjudication passed by the District Court. S.K. Ghose and Patterson JJ. in July 1938 held, inter alia, that the appellate side of this Court was a 'civil Court' within the meaning of the Act. The learned Judges simply followed the decision of Panckridge J. in Narsingdas v. Chhogmull : AIR1938Cal402 and that of Ameer Ali J. in Baijnath v. Tormull : AIR1938Cal455 .

4. In March 1939 the decision of Panckridge, J. in Narsingdas v. Chhogmull : AIR1938Cal402 came up before a Special Bench of this Court composed of the learned Chief Justice, Lort-Williams, Bartley, Nasim Ali and Mitter JJ. The decision of the Special Bench is reported in Narsingdas Tansukdass v. Chhogmull reported in : AIR1939Cal435 The learned Chief Justice and Bartley and Nasim Ali, JJ. held that if the expression 'civil Court' included the High Court then the Act would be ultra vires the Provincial Legislature but that if it were possible to construe that expression in such way as would make it intra vires then that construction should be adopted. Their Lordships then discussed the matter and held that the expression 'civil Court' in the Act referred only to those classes of Courts which were constituted under the Bengal, Agra and Assam Civil Courts Act, 1887, and did not include the High Court. Lort-Williams and Mitter JJ. held that the expression 'civil Court' in the Act applied to the High Court in its ordinary original civil jurisdiction but so far as the Act purported to affect the High Court in its ordinary original civil jurisdiction it was beyond the powers of the Local Legislature. The ultimate result of the decision of all the learned Judges constituting the Special Bench was, although for different reasons, that a notice under Section 34 of the Act could not operate to stay execution by the High Court of a decree passed by itself in exercise of its ordinary original civil jurisdiction. The next case that I need refer to is that in Khirode Chandra Ghose v. Narendra Nath Sanyal : AIR1939Cal599 . In that case certain appeals and revision applications were pending in the appellate side of his Court and the question was whether notice under Section 34 of the Act operated as stay of those appeals or revision applications. A Special Bench consisting of the learned Chief Justice and Nasim Ali and Mitter JJ. in July 1939 answered the question in the negative, because the majority of the learned Judges in the previous Special Bench case in Narsingdas Tansukdass v. Chhogmull reported in : AIR1939Cal435 had held that the expression 'civil Court' did not include the High Court. Thus we have two Special Bench decisions, one that the Act does not affect the High Court in exercise of its ordinary original civil jurisdiction and the other that it does not affect the High Court in exercise of its appellate and revisional jurisdiction over the civil Courts mentioned in the Bengal, Agra and Assam Civil Courts Act. Then came the Bengal Agricultural Debtors' (Amendment) Act, 1940. By Section 2 of this Act a clause, being (6A) was inserted in Section 2, Bengal Agricultural Debtors' Act, 1935. The new Clause (6A) is in the following terms:

'Civil Court' means a civil Court within the meaning of the Bengal, Agra and Assam Civil Courts Act, 1887, and includes any Court exercising appellate or revisional jurisdiction over any such Court.

5. The learned Registrar appears to be of the view that this amendment brings the High Court within the meaning of 'civil Court' as the High Court exercises appellate or revisional jurisdiction over the civil Courts within the meaning of the Bengal, Agra and Assam Civil Courts Act of 1887. The High Court was established by the High Courts Act of 1861 (24 and 26 vict. chap. 104). Section 9 of that Act provided that the High Court

shall have and exercise all such civil, criminal, admiralty and vice-admiralty, testamentary, intestate and matrimonial jurisdiction original and appellate and all such powers and authority for and in relation to the administration of justice in the presidency for which it is established, as Her Majesty may by such Letters Patent as aforesaid grant and direct, subject, however, to such directions and limitations as to the exercise of the original civil and criminal jurisdiction beyond the limits of the presidency towns as may be prescribed thereby; and, save as by such Letters Patent may be otherwise, directed, and subject and without prejudice to the legislative powers in relation to the matters aforesaid of the Governor-General in India in Council, the High Court to be established in each presidency shall have and exercise all jurisdiction and every power and authority whatsoever in any manner vested in any of the Courts in the same presidency abolished under this Act at this time of the abolition of such last mentioned Courts.

6. The Letters Patent of 1865 in Clause 11 pro-vides that the High Court shall have and exercise ordinary original civil jurisdiction within such local limits as may from time to time be declared and prescribed by any law made by competent legislative authority for India. Clause 12 of the Letters Patent empowers the High Court to receive, try and determine suits of every description under certain conditions therein specified. Clause 13 confers extraordinary original civil jurisdiction. Clause 15 provides for appeal from the Courts of original civil jurisdiction to the High Court in the appellate jurisdiction. Clause 16 provides that the High Court shall be a Court of appeal from the civil Courts of the Bengal Division of the Presidency of Fort-William and from all other Courts subject to its superintendence and shall exercise appellate jurisdiction in such cases as are subject to appeal to the said High Court by virtue of any laws or regulations now in force. Clause 17 gives jurisdiction to High Court with respect to infants, idiots and lunatics. Clause 18 provides for the insolvency jurisdiction. Clause 22 confers ordinary original criminal jurisdiction on the High Court. Clause 32 deals with admiralty and. vice-admiralty jurisdiction of the High Court. Clause 34 deals with testamentary and intestate jurisdiction of the High Court. Clause 35 confers matrimonial jurisdiction on the High Court. It will be seen from the above summary that the High Court exercises different jurisdictions under different clauses of the Letters Patent although notionally it is one and the same Court.

7. Turning now to the new Clause (6A) of Section 2, to which I have already referred, the question is what is the meaning of the words 'and includes any Court exercising appellate or revisional jurisdiction over any such Court.' The definition of 'civil Court' first of all means the several classes of Courts mentioned in the Bengal, Agra, and Assam Civil Courts Act.' That is the primary meaning of that expression. Then the definition proceeds to 'include' some other Courts. The word 'includes' indicates an extension of the primary meaning. That is to say, Courts which would not ordinarily come within the primary meaning of the expression 'civil Court' are by express words brought within the expression. Obviously, the extension cannot be intended to refer to the Courts which are already within the meaning of the expression 'civil Court,' i.e., the Courts mentioned in the Bengal, Agra and Assam Civil Courts Act, 1887, because they being already within the primary meaning of the expression 'civil Court' no extension of the definition is unnecessary to include them. Therefore this extension must refer to some other Court exercising appellate or revisional jurisdiction over any of those Courts. Therefore this extension can only refer to the High Court. If this extension was intended to apply to the High Court in the exercise of each and all of its several jurisdictions it would have been simpler to say 'and includes the High Court.' The Legislature knew that the High Court exercises different jurisdictions under different clauses of the Letters Patent. It knew that there are no agricultural debtors in the presidency town. It knew that debtors ordinarily live in the mofussils from where appeals and revision applications come before the appellate side of this Court. Therefore when the Legislature says that the expression 'civil Court' includes 'any Court exercising appellate or revisional jurisdiction over any such Court' it must be taken to mean the High Court exercising appellate and revisional jurisdiction. It follows, there fore, that the High Court exercising ordinary Original civil jurisdiction was not intended to be included in the definition of 'civil Court.' It seems to me that this definition was enacted to nullify the effect of the decision of the Special Bench in Khirode Chandra Ghose v. Narendra Nath Sanyal : AIR1939Cal599 . In my judgment, the Bengal Agricultural Debtors' Act, even after the amendment does not affect the High Court in the exercise of its ordinary original civil jurisdiction. That being so, the notices under Section 34 of the Act do not, in my judgment, operate as stay of execution of the two decrees in the two suits which were passed by this Court in the exercise of its ordinary original civil jurisdiction.

8. The point on which I had some doubt was that when the two decrees are transmitted to the district Court for execution the plaintiffs will have to apply for execution before the district Court and that the proceedings being then in the district Court which is a 'civil Court' that Court may be bound to 3tay the proceedings and therefore it would be useless to transmit the decree to the district Court. My attention, however, has been drawn to Taraknath Kundu v. Panchanan Dutt : AIR1939Cal564 where it has been held that the word 'debt' as defined in Section 2, Bengal Agricultural Debtors' Act, does not include the liability founded upon the decree of the High Court passed in exercise of its ordinary original civil jurisdiction and accordingly a notice under Section 34 of the Act cannot operate to stay proceedings in execution of such a decree pending in the Court of a Munsiff to which the decree had been transferred for execution. This case has been followed in subsequent cases on the appellate side of this Court. These decisions removed the doubt which I had and to which I have referred above. In my opinion, there is no impediment in the way of transmitting the decrees as already ordered.

9. Mr. Majumdar also drew my attention to Section 108, Government of India Act, 1935, and hinted that the amending Act of 1940 also appears to be ultra vires because the assent of the Governor-General had not been obtained and therefore even the appellate side of this Court cannot be affected. It is not necessary for me to go into this question. Indeed if it were necessary to go into that question I would be bound to refer the matter to the learned Chief Justice under chap. 5, Rule 3 of the Rules of this Court. Mr. Majumdar has also submitted that his client's claim having accrued after 1st January 1940 it does not come within the definition of 'debt' in the Bengal Agricultural Debtors' Act as amended by the Act of 1940. In the view that I have taken above it is not necessary for me to go into this question also. I therefore direct that the two decrees be transmitted to the district courts as already ordered. I make no order as to costs of the present hearing, exept that I certify for counsel as between attorney and client.


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