NALINI KANTA MAITY Vs. BROJO MOHAN PATRA

JUDGEMENT

(1.) This rule was obtained by the plaintiff-petitioner on an application under Section 25, Provincial Small Cause Court Act, and it is directed against an order of dismissal made by the Munsif, second Court, Contai, (exercising Small Cause Court powers) in small cause court suit No. 21 of 1940. The facts necessary for our present purposes may be shortly stated as follows: The defendant-opposite party borrowed a sum of Rs. 200 from the plaintiff on a promissory note, dated 18 September 1935. In April 1938, the defendant presented an application before the Debt Settlement Board at Karanji for settlement of his debt. The debt due on this promissory note was settled at Rs. 125, and on that basis an award was made which made the money payable within Jaistha 1346 B.S. The defendant did not pay the money in accordance with the award, and the plaintiff also failed to file an application before the certificate officer within the time allowed by the rules for recovery of this amount as a public demand. As the certificate procedure is no longer open to him, he has instituted the present suit for recovery of the amount settled by the Debt Settlement Board together with interest at 25 per cent. per annum. The Munsif, who heard the suit, dismissed it on the ground that the suit was not maintainable under Section 33, Bengal Agricultural Debtors Act. It is the propriety of this decision that has been challenged in this rule.

(2.) On hearing the learned advocates on both sides, we are of opinion that the view taken by the Court below is not right and cannot be supported. Section 28 (1), Bengal Agricultural Debtors Act, provides that if the debtor fails to pay any amount payable under an award by the date fixed, such amount is recoverable as a public demand on application made within the prescribed period by a creditor to whom the amount is due. Rule 63 of the rules laid down by Government under Section 55, Bengal Agricultural Debtors Act, provides that such application is to be made within 60 days of the date when the amount was payable under the award, or within 30 days of the date on which the certificate officer rejected the debtor's prayer for extension of time under Section 28 (2) of the Act; or, if the prayer for extension is granted, within 60 days of the extended date. If the creditor does not make an application within the period mentioned above, he cannot realize the award money any further by the certificate procedure, and para. 2 of Sub-section (1) of Section 28, Bengal Agricultural Debtors Act, lays down that in such circumstances the amount payable under the award shall be deemed to be a debt incurred by the debtor after the date of the signing of the award. This means that the creditor would not lose his rights altogether, and the amount would be recoverable only after all other amounts payable under the award had been paid or had been certified by the certificate officer to be irrecoverable under the provisions of Section 29 (5), Bengal Agricultural Debtors Act. As the certificate procedure is no longer open to the creditor, the debt, in my opinion, can be realized through the instrumentality of the civil Court, subject to the restrictions contained in Section 35 (3), Bengal Agricultural Debtors Act, and this can be done only by filing a suit in the ordinary way and obtaining a decree upon that, for the award, even if it is supposed to exist could not be enforced as a civil Court decree.

(3.) The Court below seemed to be of opinion that the suit was barred under Section 33 (2), Bengal Agricultural Debtors Act, which prohibits a civil or revenue Court from entertaining a suit or proceeding in respect of any debt for which any amount is payable under an award except in accordance with the provisions of Sub-section (5) of Section 29 of the Act. We do not think that the bar created by the section is at all attracted to the facts of the present case. As the creditor omitted to avail himself of the certificate procedure, the award qua award ceased to exist, and what is substituted for it by fiction of law is a new debt altogether, which is deemed to have been incurred by the debtor after the date of the signing of the award. It can no longer therefore be deemed to be included in the award or in the application for settlement of the debt under Ss.8 and 13, Bengal Agricultural Debtors Act. In my opinion, it cannot come within the mischief of Section 33 (2) of the Act which applies only when the amount is still payable under the award, hold therefore that the creditor is at liberty to pursue his remedy in the civil Court in respect of the substituted debt, subject only to the provisions of Section 35 (3) of the Act which do not bar a suit but only impose certain restrictions with regard to the way in which a decree has to be executed. The result therefore is that the rule is made absolute, the order passed by the Munsif is set aside and the case is sent back in order that if; may be reheard and disposed of in accordance with law. The petitioner is entitled to his costs and we assess the hearing fee at two gold mohurs. Biswas, J.