1. This appeal is by the judgment-debtor and is directed against an Order refusing to stay proceedings for delivery of possession in a certain execution proceeding in accordance with a notice served upon the Court under the provisions of Section 34, Bengal Agricultural Debtors Act. The sale took place on 22nd September 1937, and was confirmed on 8th November 1937. The appellant's father, who was the original judgment-debtor, then filed the usual application under Section 174, Ben, Ten. Act. The ensuing miscellaneous case was compromised on terms-the terms being such as are frequently found in cases of this kind. The judgment-debtor agreed to pay Rs. 47-10-5 pies at once and the balance in eight quarterly instalments. If the instalments were duly paid, the application under Section 174 would be allowed and the sale set aside. In the case of default, the application would be dismissed. The first five instalments were duly paid and then there was a default. After the default, the judgment-debtor went to a Debt Settlement Board on 3rd September 1939. I am informed that the case was subsequently transferred to the Special Debt Settlement Board of the Sub-Division. In the meantime, the decree-holder applied for delivery of possession on 24th May 1940. The notice under Section34, Bengal Agricultural Debtors Act, was received on 2nd August 1940. I am told by the learned advocates that the case is still pending before the board. If this is so, it is alarming to find that the board has taken over three years to do nothing and the attention of the Collector of the District should be drawn to this case.
2. Apart from a plea of payment, subsequent to the filing of the application before the board, the dispute between the parties is whether it can be said that the money due under the compromise agreement is a debt. On the one hand, it is contended that it cannot be a debt, inasmuch as the appellant cannot be compelled to pay it. This was the view taken by myself in Krishna Gobinda v. Salamatulla ('40) 44 C.W. N. 789, On the other hand, it has been held that in the case of a usufructuary mortgage, although the mortgagor cannot be compelled to pay, the mortgage-money is a debt, because the mortgagor cannot recover possession of his land without paying it. So, in the present case, it is contended that in view of the agreement made between the parties, the present case is similar to that of a usufructuary mortgage. Thus, there can be no doubt that it has to be decided between the parties whether there is a debt or not, and arguments can be put forward in support of either view. Under Section 20, Bengal Agricultural Debtors Act, as amended, the question whether the liability is a debt or not is a matter which has to be decided by the board. The decisions upon which the Courts below relied were all made under the old section and I suppose that it was in Order to get rid of the effect of those decisions that the section was thus amended. As a result of that amendment, questions such as this have to be decided by the board, and it is no longer open to the Courts to ignore a notice under 34 on the ground that there is no debt within the meaning of the Act.
3. The amending Act came into force on 11th July 1940. At that time both the proceedings before the board and the respondent's application in the executing Court were pending. It is therefore to be considered whether the amended section applies or not. This aspect of the case was not considered by either of the Courts below. Now there is an obiter dictum by Mukherjea J. in Jabed Sheikh v. Taker Mallick : AIR1941Cal639 , which ia in favour of the respondents; with very great respect to that learned Judge I should find it difficult to accept that decision as correct. It is well settled that no person has a vested right in any particular course of proceedings. It is however unnecessary for me to consider this matter any further, because Mr. Bannerjee has drawn my attention to the fact that there is a decision in his favour by a Division Bench of this Court in Bireswar Moral v. Indu Bhusan : AIR1943Cal573 , In opposing the appeal, Mr. Chakrabarty relied upon the explanation to Section 34 itself. That explanation is to the effect that an execution proceeding for the sale of any property shall be deemed to be pending and the debt in respect of which the sale takes place shall be deemed to exist until such sale becomes absolute. There was an application under Section 174, Ben. Ten. Act, and as long as that application is undisposed of, it cannot be said that the sale has become absolute. By the agreement between the parties if certain payments were made then the sale will be set aside. The question now in dispute between the parties is whether the appellant's right to have the sale set aside has lapsed. Until that matter has been decided, it cannot be, said that the sale has become absolute. The appeal is accordingly allowed and I direct that the application of the respondents for delivery of possession be kept pending in accordance with the notice received under Section 34, Bengal Agricultural Debtors Act. I make no Order as to costs.