BIBHUTI BHUSAN ROY Vs. BHOLANATH SINGHA ROY

JUDGEMENT

(1.) This rule is directed against an order of the Munsif at Ranaghat, dated 11 November 1943, by which he stayed a mortgage suit, pending before him, on receipt of a notice under Section 34, Bengal Agricultural Debtors Act. The facts lie within a short compass and are uncontroverted. The petitioner advanced a sum of us. 475 to the opposite parties on the basis of a mortgage bond executed by the latter in his favour. On 15 July 1939, the opposite parties presented an application under Sec. 8 (1), Bengal Agricultural Debtors Act, before the Special Debt Settlement Board at Ranaghat for settlement of the aforesaid mortgage debt and some other debts owing by them. On 1 January 1940, the Special Debt Settlement Board dismissed the said application under Section 17 (2), Bengal Agricultural Debtors Act. The debtors, took no further steps in that matter and did not challenge the order by way of an appeal to the appellate officer. Nearly three years after that, the petitioner filed a suit to enforce the mortgage bond in the Court of the Munsif at Ranaghat and the suit was registered as Title Suit No. 43 of 1943. On receipt of the summons of the suit, the opposite parties filed another application under Section 8, Bengal Agricultural Debtors Act before the Debt Settlement Board at Fatehpur for settlement of the very same debts which were the subject- matter of the first application. The Fatehpur Debt Settlement Board issued a notice under Section 34, Bengal Agricultural Debtors Act, for stay of the mortgage suit pending before the Munsif at Ranaghat. The Munsif at first refused to stay the suit, being of opinion that the order was without jurisdiction, but, later on, he revised his own order and directed a stay of all further proceedings in the suit, pending the disposal of the application by the Settlement Board. It is the propriety of this order that has been challenged before us in this rule. It cannot be disputed that there is no provision in the Bengal Agricultural Debtors Act under which a second application for settlement of debts could be presented to a Debt Settlement Board after a first application in respect of the same debts is dismissed under Section 17 (2) of the Act. Section 8 (5), Bengal Agricultural Debtors Act, provides as follows : Notwithstanding anything contained in Sub-section (1) a Board may for good and sufficient reason entertain a further application in respect of any debt incurred before the date of a first application under Sub-section (1) or Sub-section (2) whether such application was made to it or to any other Board, except when such application under either of the said subsections has been dismissed under Sub- section (3) of Section 13 or under Clause (b) (ii) of Sub-section (1) or Sub-section (2) of Section 17. This obviously contemplates a case where a, debt incurred before the first application was omitted from it through inadvertence or otherwise, and a fresh application in respect of such debts can be entertained by the board if the debtor can show good and sufficient reason for the omission. It cannot apply to a case of this description when the second application is made in respect of the identical debt that was the subject-matter of the first application.

(2.) Assuming, however, that Section 8 (5), Bengal Agricultural Debtors Act, is wide enough to include a case where the second application is in respect of a debt which was not omitted from but included in the first application, it is perfectly clear from what the sub-section itself provides that the second application in respect of such debts is not entertainable by the board if the previous application was dismissed under Sub-section (3) of Section 13 or under Clause (b) (ii) of Sub-section (1) or Sub-section (2) of Section 17 of the Act. The question for our consideration is whether a civil Court can ignore the notice issued by the Debt Settlement Board on the strength of the second application under Section 34, Bengal Agricultural Debtors Act, on the ground that it is without jurisdiction, or is it for the board itself before which the second application is filed to decide whether that application is entertainable or not. The judicial opinion on this point cannot be said to be quite uniform.

(3.) In Kali Sundar Roy V/s. Khem Chand Bothra. , it was held by Edgley J. that in a case of this description, the order of dismissal made on the first application has the effect of excluding the debt from the scope of the Act, and as Section 34, Bengal Agricultural Debtors Act, only applies to debts which fall within the scope of the Act, a civil Court would be quite competent to ignore the notice and refuse to stay the proceedings. This decision was followed by Henderson J. in Purnalal Nandan V/s. Bhupendra Chandra Dutt . Both these decisions were considered by Boxburgh and Blank JJ. in Jadu Mandalini V/s. Sarajini Choudhurani ( 43) 47 C.W.N. 888, and it was held that even if the second application is not entertainable by reason of the provisions of Section 8 (5), Bengal Agricultural Debtors Act, it is for the board and not for the civil Court to decide and say that such an application is not competent in law. The learned Judge expressed the opinion that in view of the amendment of the provision of Section 20, Bengal Agricultural Debtors Act, the decision of Edgley J. in the case referred to above can no longer be accepted as correct. The propriety of this decision was doubted by Mitter and Sharpe JJ. in the still more recent case in Dayanand Singh Jha V/s. Majimannessa ( 44) 48 C. W. N. 712. It is an established principle of law that when a tribunal exercises a subordinate or special jurisdiction, the question whether the condition essential to give it jurisdiction is present or not is left to the ordinary Courts of the land unless this power is expressly taken away from the latter. In Secretary of State V/s. Mask & Co. ( 40) 27 A. I. R. 1940 P. C., it was thus observed by their Lordships of the Judicial Committee: It is settled law that the exclusion of the jurisdiction of the civil Courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure." Secretary of State V/s. Mask & Co. ( 40) 27 A. I. R. 1940 P. C. at p. 236.