SITARAM BHATTACHARJEE Vs. PANCHA MUCHI

JUDGEMENT

(1.) This is a reference under Order 46, Rule 1, Civil P.C, made by the Munsif of Bongaon in the district of Jessore in a suit which was filed in his Court on 21 April 1941 by one Sitaram Bhattacharyya against Panchu Muchi for recovery of a share of the produce of some agricultural land which the defendant held under the plaintiff under what is known as the barga system. The claim was in respect of two years 1346 and 1347 B.S., that is to say, from the middle of April 1939 to the middle of April 1941, and there was a prayer in the alter-native for recovery of the price of the crops at the current market rates. The suit was duly registered by the learned Munsif as a Small Cause Court suit. It appears that the defendant thereafter approached a Debt Settlement Board at Khalishpore, and on 7 May 1941 the learned Munsif received a notice from that Board under Section 34, Bengal Agricultural Debtors Act, 1935, with the result that the proceedings in the suit were stayed. On 9 June following, however, the plaintiff made an application to the learned Munsif for vacating the stay order in part, namely, as regards that part of the claim which related to the period after 1 January 1940, and it is because the learned Munsif entertained a doubt as to how he should deal with this application that he made the present reference. Two questions have been formulated by him, and they are in these terms: (1) If a civil Court receives a notice under Section 34, Bengal Agricultural Debtors Act, in a barga suit, is it bound to stay the proceedings of that suit in view of the fact that a barga claim is not a "debt" within the meaning of the Begal Agricultural Debtors Act ? (2) If the above question be answered in the affirmative, is the civil Court entitled to proceed with the barga suit in so far as the claim falls after 1 January, 1940 ?

(2.) On the statement of facts submitted to us it does not appear that the first of these questions at all arises in the case. By his application of 9 June 1941 the plaintiff did not challenge the whole of the stay order, but merely asked that he might be allowed to proceed with the suit in so far as part of the claim was concerned. This is the subject-matter of the second question, and, in our opinion, an answer to this question should be sufficient to dispose of the reference. The question evidently arises because of the amendment introduced in 1940 in the definition of "debt" in Section 2, Sub-section (8), Bengal Agricultural Debtors Act, whereby a debt was limited to include only liabilities "incurred prior to 1 January 1940." From this point of view it may no doubt be contended that the claim in respect of the period subsequent to 1 January 1940 is not a debt within the meaning of the Act, and that the provisions of the Act cannot consequently operate on this part of the suit. The effect of Section 20 as last amended cannot, however, be ignored. The section as it now stands expressly provides that if any question arises in connexion with proceedings before a board under this Act, whether a person is a debtor or not, or whether a liability is a debt or not, the board shall decide the matter. It is not disputed that the amended section applies to the present suit, which was in fact instituted long after the amendment had come into force. "Where therefore rightly or wrongly, the debtor has chosen to include a liability incurred, partly before, and partly after, 1 January 1940 in his application to the Debt Settlement Board under Section 8, it seems to us that the Debt Settlement Board itself is the only authority which has jurisdiction to decide whether any part of the liability is a debt or not. A question of partial stay of suit pending in a civil Court on receipt of a notice under Section 34 can arise, only if the claim for the period subsequent to 1 January 1940" is not included in the application before the Debt Settlement Board, or if the Debt Settlement Board, itself decides under Section 20 that this portion of the claim is not a debt and that the board cannot therefore deal with it. This was the view taken by this Court in another reference which was disposed on 8 July last, Nator Raj Wards Estate V/s. Saber Sardar .

(3.) We may add that though, as stated above, the first question raised by the learned Munsif in this reference does not properly arise, the answer to it must also be governed by the same considerations. As the learned Munsif correctly points out, it is not intended that in respect of matters which have been expressly relegated to Debt Settlement Boards for adjudication, civil Courts should exercise a concurrent jurisdiction. To hold otherwise would be to defeat the whole object of this special legislation as disclosed in its various provisions. The Act itself indicates the procedure which any party aggrieved by a stay notice under Section 34 may appropriately follow. Apart from the right of appeal which Section 40 confers against any decision or order of a board under the Act, Section 44 provides that any person interested may apply to the board to review any decision or order passed by it. We cannot help thinking that in most cases difficulties arise because the orders for issue of notices under Section 34 are made ex parte, but these difficulties could more of ten than not be removed by the boards themselves, if only the parties concerned properly represented the matter to them, instead of applying to the civil Courts for redress which they are powerless to give. The boards also might perhaps in many cases avoid creating unnecessary difficulties by the exercise of some care and attention in examining the nature of the claim before making an order for the issue of a notice under Section 34. Let this opinion be forwarded to the learned Munsif for necessary action. Roxburgh, J.