1. This appeal is against the decision of the Additional Subordinate Judge, Second Court, Mymansingh by which he adjudicated the appellants Shib Dulare Sukul and Trilochan Sukul as insolvents on the application of one of the creditors, Kishoreganj Loan Office Ltd. Co. The facts of the case are that during the tendency of the insolvency proceedings, notice under Section 34, Bengal Agricultural Debtors' Act was received by the Court intimating that an application had been received by the Atharabari Debt Settlement Board under Sections 8 and 13(1) of the Act praying for the settlement of the debts of the opposite party who have since been adjudicated insolvents. On receipt of this application, the Court was moved to stay all further proceedings in the case under Section 34 of the above Act. The Court refused to take the action as requested on the ground that the Bengal Agricultural Debtors' Act had got no application, as the opposite parties Shib Dulare Sukul and Trilochan Sukul are not debtors within the meaning of the Act. Their primary livelihood is not agricultural, they are merchants although they have got some landed properties, mostly revenue paying estates. In passing, it may be noted that this conclusion of fact did not appear to be based on evidence recorded during the insolvency proceedings. The learned Additional Sub-ordinate Judge moreover held that the application filed before the Debt Settle-ment Board by the opposite party was not a bona fide application but was made simply for the purpose of obtaining an adjournment of the insolvency proceedings.
2. It seems clear to us that the orders made by the learned Additional Subordinate Judge cannot be supported. It was made mainly on the ground that the opposite parties were not debtors within the meaning of the Act. Under Section 20 of the Act itself if any question arises in connexion with proceedings before a Board under this Act, whether a person is a debtor or not, the Board shall decide the matter and it would seem that such a decision must precede any notice issued under Section 34 of the Act. It is not for the Insolvency Court to decide more especially without taking any evidence whatsoever, whether a person is or is not a debtor within the meaning of the Bengal Agricultural Debtors' Act of 1935. On this ground alone, the decision of the learned Additional Subordinate Judge must be set aside and the order of adjudication made against the appellants Shib Dulare Sukul and Trilochan Sukul must be rescinded. In the result, this appeal is allowed and both the orders complained of are set aside. The proceedings now pending in the Court of the Additional Subordinate Judge of Mymensingh against the appellants at the instance of the respondents will be stayed under Section 34, Bengal Agricultural Debtors' Act, 1935 pending further proceedings before the Board. There will be no order for costs in this appeal as there is no appearance on behalf of the respondent. The rule is discharged.