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Rambandhu Misra and ors. Vs. Brahmananda Laik and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Case NumberCivil Rules Nos. 1203 and 1206 of 1949
Judge
Reported inAIR1950Cal524,54CWN586
ActsBengal Agricultural Debtors Act, 1936 - Sections 2(8), 37A, 37A(5) and 37A(7); ;Bengal Agricultural Debtors Rules - Rules 145, 146 and 146(2)
AppellantRambandhu Misra and ors.
RespondentBrahmananda Laik and anr.
Appellant AdvocateChandra Sekhar Sen and ;Sailendra Nath Banerjee, Advs.
Respondent AdvocatePhanindra Nath Das, Adv.
Excerpt:
- .....application under section 37a of the act was rs. 10,000. he has referred to the definition of the word 'debt' in section 2, sub-section (8) (v) which is in these terms : ' 'debt' includes all liabilities incurred prior to the first day of january 1940 of a debtor in cash or in kind, secured or unsecured, whether payable under a decree or order of a civil court or otherwise, and whether payable presently or in future, but does not include the following......any amount a suit or application for the recovery of which is barred by limitation, or which is otherwise irrecoverable under the law.'6. mr. sen's argument is that the balance of the decretal amount which wag over rs. 25,000 was irrecoverable when this application under section 37a was made. he pointed out that the sale was confirmed.....
Judgment:

Harries, C.J.

1. These two applications are for revision of orders made by a learned District Judge in revision under Section 40A, Bengal Agricultural Debtors Act

2. The decree-holders opposite parties had obtained against the petitioners or their predecessors a mortgage decree for Rs. 20,100 in mortgage Suit No. 75 of 1325 in the Court of the Subordinate Judge of Bankura. By the decree the petitioners were jointly and severally liable. The decree provided that in default of payment by Bhadra 1335 B. S., interest would run at 9 annas per cent. per mensum until realisation. A preliminary decree was obtained on 3rd August 1927, which was made final on 22nd September 1928. In the year 1935, the decree-holders executed the decree for recovery of Rs. 31,534 which was the sum then due on the mortgage after adding the interest which had accrued to the decretal amount and execution costs. The mortgaged properties were put up for sale and purchased by the decree-dolders for Rs. 10,000 on 16th March 1936, and the sale was confirmed on 22nd July 1936 possession being delivered on 1st and 2nd May 1937.

3. In the year 1942, the petitioners who were the mortgagors filed two separate applications under Section 37A, Bengal Agricultural Debtors Act, in which they alleged that the total debt due from both sets of petitioners was Rs. 10,300 and that each set of petitioners owed only Rs. 6000.

4. The Board came to the conclusion that the debt which was the subject-matter of each of these applications was Rs. 31,584 and held that under Rules 146 and 147 the Board had no jurisdiction to deal with the matter. There were appeals to the appellate Officer which were dismissed, and applications in revision to the District Judge under Section 40A of the Act were also dismissed.

5. Mr. Chandra Sekhar Sen on behalf of the petitioners has contended that the amount of the debt which wag the subject-matter of the application under Section 37A of the Act was Rs. 10,000. He has referred to the definition of the word 'debt' in Section 2, Sub-section (8) (v) which is in these terms :

' 'Debt' includes all liabilities incurred prior to the first day of January 1940 of a debtor in cash or in kind, secured or unsecured, whether payable under a decree or order of a civil Court or otherwise, and whether payable presently or in future, but does not include the following......any amount a suit or application for the recovery of which is barred by limitation, or which is otherwise irrecoverable under the law.'

6. Mr. Sen's argument is that the balance of the decretal amount which wag over Rs. 25,000 was irrecoverable when this application under Section 37A was made. He pointed out that the sale was confirmed on 22nd July 1936 and possession actually given on 1st and 2nd May 1937. The decree-holders could apply within three years from the date of the confirmation of the sale for a simple money decree for the balance of RS. 25,000 odd, but they did not do so. After three years admittedly an application for a simple money decree would be barred by limitation. That being so, Mr. Sen has contended that by reason of the definition, to which I have referred, the amount irrecoverable as being barred by limitation cannot be included in the amount of the debt. The debt, therefore, would be the sum of RS. 31,534 less Rs. 21,584 which wag the amount irrecoverable as being barred by limitation. The total debt was, therefore, only Rs. 10,000 and as there were two sets of mortgagors each could claim that they were only bound to pay half the amount. That being so, Mr. Sen urged that the debt was correctly stated in each application as Rs. 5000.

7. It is to be observed that the definition Section 2 in which the definition of the word 'debt' occurs opens with these words : ''In this Act, unless there is anything repugnant in the subject or context.' The definition given is normally to be taken to apply wherever that word occurs in the statute. The definition however will not apply if the word appears in a subject or context which makes the application of the definition impossible and repugnant to the meaning of the context in which the word is found.

8. The duty of the Board in connection with jurisdiction while dealing with applications made under the Act is dealt with by Rules 144, 145 and 146 etc. Rule 144 reads as follows :

'The maximum amount of the sum total of all debts due from a debtor which can be dealt with under the provisions of the Act shall be Rs. 50,000 ;Provided that with the previous sanction in writing of the Collector, a Board may deal with an application If the sum total of all debts due from the debtor exceeds Rs. 5000 but does not exceed Rs. 25,000.'

Rule 145 is in these terms :

'If there is any doubt or dispute as to the amount of any debt, the Board shall in accordance with the principles of Section 18 and Rule 60 or Sub-section (7) of Section 37A and Rules 77D to 77F, as the case may be and as far as the same may be applicable, informally decide for the purpose of Rule 144 the amount of such debt.'

Rule 146 provides :

'(1) If the sum total of all debts mentioned by the debtor in his application under Section 8 or Section 37A or statement of debt under Sub-section (1) of Section 13 exceeds Rs. 5000 but does not exceed Rs. 25,000 the Board shall forward the application to the Collector for sanction under the proviso to Rule 144 before passing any order upon it under Sub-section (2) of Section 13 or under Section 18 or Sub-section (7) of Section 37A. (2) If the amount so mentioned by the debtor exceeds Rs. 25,000 the Board shall not entertain the application.'

9. Mr. Sen has contended that what really matters in Rule 146 is the sum total of the debts mentioned by the debtor and it matters not what the real debt is if the debtor stated the debts to be below RS. 6000, In other words, Mr. Sen has urged that the debtor can give the Board jurisdiction by understanding his debts. The words used in Rule 146 are not very happy, but I think it is clear from Rules 144 and 145 what is really meant. The words 'if the sum total of all debts mentioned by the debtor in his application etc., mean if the actual amount of the debts of the debtor exceeds Rs. 5000 or Rs. 25,000 as the case may be, then certain consequences follow.

10. It seems to me quite clear from Rule 145 that where there is a dispute as to the amount of a debt stated by the applicant in his application, the Board may informally decide the matter and when it does consider the matter it must consider it in the light of Rule 146. When it is considering what is the amount of the debt in an application under Section 37A it must consider what the term 'debt' means in Section 37A Sub-section 5. Mr. Sen's argument is that 'debt' must mean in Section 37A, Sub-section 5 what it means in other portions of the Act. In other words, the definition of the word 'debt' in Section 2 must be applied to the word 'debt' in Section 37A, Sub-section 5. I have pointed out however that in the definition section it is expressly stated that the definition given will not apply if there is anything repugnant in the subject or context, and I think it is clear that the word 'debt' in Sub-section (5) of Section 37A cannot mean what is stated in the definition of that word in Section 2. In short, there is another definition of the word 'debt' in Sub-section (7) of Section 37A of the Act. This sub-section reads :

'For the purposes of an award made under Sub-section (5) (a) the debt shall be deemed to be (i) the amount of the decree or certificate in execution of which the property was sold together with all costs of such execution including the cost of delivery of possession or the property to the decree-holder calculated in the manner prescribed.'

11. Applying this definition it is quite clear that the amount excluded in the definition as being barred by limitation must be included in ascertaining the amount of the debt. The debt is the amount of the decree, in execution of which the property was sold together with certain other charges. The amount of the decree in this case was over Rs. 32,000 and that is the amount of the debt for the purposes of Sub-section (5) of Section 37A. The amount being over Rs. 25,000, it is clear that the Board had no jurisdiction to deal with the application by reason of Sub-rule (2) of Rule 146. That being so the Board properly rejected the application and the views of the Appellate Officer and of the learned District Judge cannot be assailed.

12. Mr. Sen did not really contend that each group of petitioners was only liable for half the decretal amount, namely, Rs. 15,500 odd. He conceded that each of the groups was liable for Rs. 31,000 odd.

13. For the reasons which I have given both these petitions fail and the Rules are discharged with costs.

Banerjee J.

I agree.


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