NAFAR CHANDRA SARDAR Vs. KALI PADA DAS

JUDGEMENT

(1.) (Revision No. 963 of 1939.) The facts which are not in dispute in this rule are as follows : On 10 November 1937, the petitioners filed an application for settlement of their debts before the Debt Settlement Board, Howrah, under Section 8, Bengal Agricultural Debtors Act. The application was dismissed by the Board on 19 January 1938, on the ground that the petitioners were not "agriculturists." They appealed against this decision to the Appellate Officer. This appeal was dismissed on 25 May 1938. They applied for review under Section 44(b) of the Act, but this application was also rejected. Petitioners 1 to 4 thereafter filed another application before the Special Debt Settlement Board, Howrah under Section 8 of the Act for settlement of their debts. This application was dismissed on 27 November 1938, on the ground that a fresh application was not maintainable. They applied for a review of this order. The opposite party creditor was not present on the date of the hearing of this application. On 19 March 1939 the Board allowed the application for review and fixed 16th April 1939 for hearing on the merits. On 1 May 1939 the Board issued a notice under Section 34, Bengal Agricultural Debtors Act for staying execution proceedings against the petitioners in the first Court of Munsif at Howrah which was started by the opposite party for realization of about Rs. 2000 on the basis of a decree. A similar notice under Section 34 of the Act was also issued on the same date on the application of petitioner 5 before the Debt Settlement Board. The Munsif thereupon stayed the proceedings on that date. On 10 May 1939, the opposite party decree-holder applied to the Munsif for vacating the order of stay. On 21 May 1939, the Board decided that petitioners 1 to 4 were "agriculturists." On 29 May 1939, the Munsif arrived at the following findings : (1) That the finding of the Board in the proceeding started on the-basis of the first application by the judgment-debtor under Section 8 of the Act is binding on the Board and consequently the second petition filed by them is not a petition by debtors within the meaning of the Act; and (2) That after the dismissal of the first application under Section 8 a second application under that Section was not maintainable in law. He accordingly vacated the order staying the execution proceedings. On 20 June 1939, the present rule was issued on the decree-holder on the application of the judgment-debtor to show cause why the said order should not be set aside.

(2.) The issue between the parties before the Munsif in substance was whether the judgement- debtors were debtors within the meaning of the Bengal Agricultural Debtors Act and were therefore entitled to have their debts settled under that Act. This question is a question relating to execution as no order for attachment and sale of the properties of the judgment, debtors in execution can be made without the determination of this question. This question was therefore determined by the Munsif under Section 47 of the Code. By Section 2(2) of the Code decree includes the determination of any question under Section 47. The combined effect of Section 47 and Section 2(2) of the Code is that an order in execution proceedings is a decree, if, so far as regards the Court passing it, it conclusively determines a question relating to the rights and liabilities of the parties with reference to the relief granted by the decree Jogodishury Devea V/s. Kailash Chundra Lahiry (1897) 24 Cal. 725 at p. 737. Under the decree the judgment-debtors are liable to pay at once the entire decretal amount. The decision of the Munsif is that the judgment-debtors are not debtors within the meaning of the Bengal Agricultural Debtors Act and are not therefore entitled to the benefit of that Act. This decision will preclude them from pleading it in a subsequent stage of the execution proceedings that their liability under the decree has been reduced by an award under Section 19, Bengal Agricultural Debtors Act or that they have been declared insolvent under Section 22 of the Act and that the execution proceedings have abated by reason of an award under Section 19 or by an order under Section 22 (see Section 34). It therefore conclusively determines the question relating to the judgment-debtors liability with reference to the relief granted by the decree and is a decree.

(3.) An appeal against such a decree of a trial Court lies to the District Judge or to the High Court under Section 96 of the Code and an appeal from the decree of the lower Appellate Court lies to this Court under Section 100. In this case an appeal against the decision of the Munsif lay to the District Judge and a further appeal to this Court. The judgment-debtors did not appeal to the District Judge but moved this Court under Section 115 of the Code. The question is whether this order can be revised under Section 115 of the Code. That Section authorizes this Court to revise an order of a Subordinate Court in any case "in which no appeal lies thereto." The appeal referred to in this Section may be an appeal to this Court under Secs.96, 100, 104 or under Order 43, Civil P.C. or under any other statute. In Sashi Kanta Acharjya V/s. Basirabad Loan Office Co. a second appeal to this Court was apparently barred under Section 102 of the Code. The decision in that case may be an authority for the proposition that in cases where an appeal is allowed to the lower Appellate Court but no appeal is allowed against an appellate decree to the High Court the person aggrieved may invoke the jurisdiction of the High Court under Section 115 though he has not preferred any appeal to the lower Appellate Court. But that case is no authority for the proposition that where an appeal is allowed to the High Court the High Court can interfere under Section 115 of the Code.