HEMENDRA NATH ROY CHOWDHURY Vs. PURNA CHARAN HAULI

JUDGEMENT

(1.) This appeal arises with reference to an application riled by the decree-holder under Section 47, Civil P.C., in which ha asked that an order staying the execution proceedings under Section 34, Bengal Agricultural Debtors Act, should be vacated. The application was rejected by the learned Munsif and the decision of the trial Court was affirmed on appeal by the learned District Judge of Khulna. It appears that the decree-holder had instituted a suit against the judgment-debtors for non-payment of their share of the bhag produce due in respect of a certain plot of land with an area of 40 bighas. His case was that the owner's share of the produce amounted to 169 maunds of paddy and a certain quantity of straw and he claimed Rs. 770 as the pries of the produce, including interest. On con-test he obtained a decree for Rs. 292-8-0, which, in the view of the Court which passed the decree, represented the proper price of the bhag produce due to the decree-holder. This decree was obtained on 28 March 1938 and the decree-holder applied for execution on 17 June 1938. Thereafter, the judgment debtors applied to the Debt Settlement Board and a notice was issued under Section 34, Bengal Agricultural Debtors Act, on 21 September 1938, whereby further execution proceedings were stayed. It seems to have been urged before both the Courts below that the provisions of the Bengal Agricultural Debtors Act had no application in respect of a liability of this sort, but this contention was not accepted as it was held that the Act did not exclude a decretal debt although the claim in the original suit was for bhag produce.

(2.) The main point for consideration in connexion with this appeal is whether or not a decree such as the decree-holder was seeking to execute is exempted from the operation of the Act by reason of the provisions of Section 2(8)(iii) of the Act. This sub-section provides that debt includes all liabilities 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...(iii) any share of the produce of land payable on account of land cultivated under the system known as adhi, barga or bhag.

(3.) There can be no doubt that if, according to the terms of the decree, a certain share of the produce of the land had been made payable to the decree-holder, the liability thereunder would have been clearly exempted from the operation of the Act. It must however be remembered that the amount of money which was decreed was considered by the Court which passed the decree to be the cash equivalent of the share of the produce due to the decree- holder and it therefore follows that this cash liability is really a liability in respect of a share of the produce of the land, to which reference is expressly made in Section 2(8)(iii) of the Act. It is argued that the decree which the appellant was seeking to execute must be regarded as a debt within the meaning of ike Act in view of the proviso to Section 18 which is la the following terms: Provided that a decree of a Civil Court relating to a debt shall be conclusive evidence as to the existence and amount of the debt as between the parties to the decree.