JABED SHEIKH Vs. TAHER MALLICK

JUDGEMENT

(1.) This rule is directed against an order of the Sadar Munsif, Faridpur, dated 25-6-1940, refusing to stay a proceeding for ascertainment of mesne profits on receipt of a notice under Section 34, Bengal Agricultural Debtors Act. The material facts are not in controversy and may be stated as follows : The opposite party 1, Taher Mallik, brought a suit against the petitioners and certain other persons in the Court of the Sadar Munsif at Faridpur, for recovery of possession of certain property on establishment of his title to the same. There was also a prayer for mesne profits in the plaint. The suit culminated in a decree passed by the trial Court on 13 August 1936, which was finally affirmed by this Court in S. A. No. 456 of 1938. The plaintiff's claim for khas possession in respect of the lands in suit was allowed, and it was further declared that he would be entitled to recover mesne profits from the defendants, which would be ascertained on an application made by him under Order 20, Rule 12, Civil P.C. The plaintiff obtained delivery of possession of the property in suit through Court, and then started the present proceeding for ascertainment of mesne profits as directed by the preliminary decree. During the pendency of the proceeding two of the judgment-debtors applied to the Debt Settlement Board at Majchar for settlement of their debts under Section 8, Bengal Agricultural Debtors Act, and on 11 June 1940, the Munsif received a notice from the Board under Section 34 of the Act, requesting him to stay further proceedings in the suit. This the Munsif refused to do, on the ground that no debt in the sense of an absolute or perfected debt having as yet come into existence, the provision of Section 34, Agricultural Debtors Act, was not applicable to the facts of the present case. It is the propriety of the decision that has been challenged before us in this rule.

(2.) In order that a suit or proceeding may be stayed under Section 34, Bengal Agricultural Debtors Act, it is necessary that it must relate to a debt, which is included in an application under Section 8 or a statement under Section 13 (1) of the Act. The Munsif was of opinion that as the inquiry was still pending, there was no certainty as to whether any money would be payable by the defendants as mesne profits or not, and a liability which might or might not arise in future would not be a debt within the meaning of the Act. Mr. Mukherjee, who appears in support of the rule, argues before us that this view is not correct; and that the liability of the defendants to pay mesne profits is a present liability, though the amount is still unascertained, and it is not in any way dependent upon a future contingency which might or might not happen. In support of this argument, reliance has been placed by the learned advocate on a decision of Edgley J. which is to be found reported in Revati Mohan Roy v. Bhikchand Bhuiyan Now a debt, as defined in Section 2 (8) , Agricultural Debtors Act, includes all liabilities incurred prior to 1 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. Then follows a list of exceptions, item (i) of which excludes from the category of debt any liability the payment of which is contingent. Strictly speaking, this is not a definition, but a description of the term debt, and the description has both a positive and a negative aspect, which set out the limits within which the expression is to be confined for purposes of the [Act. Section 2 (8) begins by saying that the liability must be that of a debtor; this means that the obligation must be one to pay a debt in the accepted sense of the word, and unless the liability is that of a debtor, it would not amount to a debt within the meaning of the Act, even though the particular case does not come within the purview of any of the exceptions enumerated in the section.

(3.) A "debt" in the legal sense of the word means a liquidated money obligation for which an action will lie. Lindley L. J. in Webb V/s. Stenton (1884) 11 QBD 518 defined a "debt" to be a liquidated sum of money which is now payable or will become payable in future; land this was quoted with approval by Sir L. Jenkins in the Full Bench case in Bancharam Mazumdar v. Adhyanath Bhattacharja ( 09) 36 Cal 936. It is a debt even if the money is to be paid in future, provided the obligation has already accrued; and there may be a dispute as regards the amount payable by the debtor, which has got to be settled by the Court; but there cannot be a debt in law unless there is a liquidated money claim. In my opinion when a plaintiff institutes a [suit for damages for wrongful possession of his lands by the defendant, or claims mesne profits against him as ancillary to a prayer for recovery of possession, it is not a suit for enforcement of a debt. The defendant cannot be regarded as a debtor either before for after the institution of the suit, till a decree is passed against him making him liable for a definite sum. Then he becomes a debtor by reason of the judgment, and a judgment debt would certainly come within the purview of the Agricultural Debtors Act. In the present case the preliminary decree in the title suit must be taken to have only determined that the defendants were trespassers and hence liable to pay mesne profits to the plaintiff. It is only when a final decree for a specified sum is passed against them as a result of the investigation that is now proceeding, that they would become debtors in law, and their liability to pay the sum fixed by the judgment would rank as a debt.