MON MOHAN ROY Vs. SANTI LOCHAN ROY

JUDGEMENT

(1.) (Civil Rule No. 851 of 1943). Mohini Mohan Ghose, who is opposite party 5 in this rule, made an application under Section 8, Bengal Agricultural Debtors Act (hereinafter called the Act) to the Debt Settlement Board of Garpara. He made that application alleging that he was the creditor of opposite parties 1 to 4 and he wanted the debts of the said opposite parties 1 to 4 to be settled by the Debt Settlement Board. In his application he did not mention the fact that there were other creditors of the said four opposite parties. After his application had been registered in that Board, the Board issued a notice upon the debtors, opposite parties 1 to 4, to file a statement in accordance with the provisions of Section 13 of the Act. The debtors in due course filed the statement. In that statement they named the petitioners before us to be their creditors also. On the said information being furnished, the Debt Settlement Board issued a notice upon the petitioners before us to file their statement of claims issued under Section 13 of the Act. The petitioners filed statements wherein they said that they were also creditors of opposite parties 1 to 4 but they did not agree to the statement as to the amount of the money due to them by the said opposite parties as made in the statement of the said opposite parties. After several adjournments, the Board took into consideration the said, application of Mohini Mohan Ghose, opposite party 5, for settlement of the debts of the debtors and evidence was led by the parties. The petitioners before us raised two questions. Firstly, they contended that Mohini Mohan Ghose who had made the application under Section 8 of the Act was not a creditor of opposite parties 1 to 4, the debtors, and secondly, they said that the debtors, opposite parties 1 to 4, were not debtors within the meaning of the Act, as the primary source of their income was not from agriculture. Those two issues were considered by the Board on the evidence as recorded. The Board came to the conclusion that Mohini Mohan Ghose had failed to prove that he was a creditor of the said debtors. The Board further went into the question as to whether the said opposite parties were debtors within the meaning of the Act. It recorded the following findings: that opposite parties 1 to 3 had income from their zemindary proper, ties to the extent of Rs. 2000 a year, they had besides a business in a market called the Delhi Bazar, they had also money-lending business and a colliery in Jharia, and they had also income from their agricultural lands but the income was so very small that they could maintain themselves from their agricultural income, only for 2 or 3 months a year and had to rely upon their income from other sources indicated above for the rest of the year.

(2.) With regard to opposite party 4, the Board came to the conclusion that he was a senior pleader of the Dacca Court who resided with his family in the town of Dacca, that he had a taluk also, his income from agricultural lands was very small and he maintained himself and his family mainly from his professional income. On those findings the Board came to the conclusion that none of the opposite parties 1 to 4 were debtors within the Act and accordingly dismissed the application.

(3.) The applicant Mohini Mohan Ghose did not prefer any appeal. Two appeals were filed by the debtors, one by opposite parties 1 to 3 and the other by opposite parties 4 the pleader debtor. The appellate officer was the Sub-divisional Officer of Manikgunj. He did not at all consider the question as to whether Mohini Mohan Ghose was in reality a creditor of opposite parties l to 4. He did not also apply his mind to any of the material findings of the Debt Settlement Board on the" issue as to whether the said opposite parties were debtors within the Act or not. It seems that he did not also examine the evidence for the purposes of seeing whether the evidence supported those findings of the Debt Settlement Board. He said that the findings whether opposite parties 1 to 4 were debtors within the Act or not had not been properly considered by the Debt Settlement Board. He said that for the purposes of coming to a correct, finding the Debt Settlement Board ought to have followed the instructions given by the Local Government in what he calls to be "the model order-sheet," that is to say the Board ought to have determined what was exactly the net amount those opposite parties derived from their zamindary, colliery and other sources of income and what was the definite amount which they derived from their agricultural lands. The order of the Debt Settlement Board was set aside as the instructions given, according to the Sub-divisional Officer by the Local Government in the model order-sheet, which is printed at Appendix x, p. 248 of the Bengal Debt Settlement Manual, had not been followed. It would be a question whether by executive instructions the Provincial Government can interfere with the judicial powers or discretions of the Debt Settlement Board but that question does not arise in this case, for happily the Local Government has not in the model order-sheet done what the appellate officer attributes to it. Thereafter, the appellate officer has, for the reasons already stated, set aside the order of the Board and directed the matter to be heard again but by a different Board. The petitioners moved the District Judge under Section 40A of the Act. On 15 March 1943, the District Judge transferred the matter to the Additional Judge, First Court. On the same day, the Additional Judge recorded this order. "Received by transfer. Perused record. I see no reason to interfere. Rejected." Against this order the petitioners filed this application under Section 115, Civil P. C., and have obtained this rule.