MATI LAL SHAH Vs. CHANDRA KANTA SARKAR

JUDGEMENT

(1.) This rule was issued by Henderson J., sitting singly, who directed it to be heard by a Division Bench. It came up for hearing before a Division Bench, constituted of Khundkar and Biswas JJ., who thought that in view of the importance of the question involved, it ought to be heard by a Special Bench. Accordingly, on their requisition, the present Special Bench was constituted by the Chief Justice under the provisions of Chap. 2, Rule 1, proviso (ii), Appellate Side Rules. Since the case involves a question of law as to the interpretation of the Government of India Act, 1935, which concerns the Provincial Government, notice was directed to be given to the Advocate-General of Bengal under Order 27A, Rules 1 and 4, Civil P.C., and the Advocate-General appeared before us by Mr. Lahiri.

(2.) It is not necessary to re-state the facts which have been stated in sufficient detail in the order recorded by the Division Bench. In substance, the position is that a decree, passed by the Presidency Small Cause Court at Calcutta, was transferred for execution to a Munsiff's Court and that Court after it had commenced execution proceedings, was served with a notice under Section 34, Bengal Agricultural Debtors Act, as amended by Act 8 [VIII] of 1940. The Munsiff has held that but for the amendment of Section 20, Debtors Act, which was made by the same amending Act and has now vested the Debt Settlement Board with exclusive jurisdiction to decide whether a liability is a debt or not, he would have held that the decree under execution before him did not constitute a debt within the meaning of Section 2(8) of the Act and consequently no Debt Settlement Board had jurisdiction to deal with it at all, or interfere with its execution by a civil Court. But the amendment, he thought, made it impossible for him to decide the question for himself and, accordingly, he felt bound to stay the execution proceedings by reason of the provisions of Section 34 of the Act.

(3.) It is contended by the decree-holder who obtained the present rule, that Secs.20 and 34, Bengal Agricultural Debtors Act, as they stand, now and so far as they affect the execution of a j decree of the Calcutta Small Cause Court by a civil Court, are void, being repugnant to the provisions, of Section 47, Civil P.C., and Section 31, Presidency Small Cause Courts Act. The learned Munsiff was therefore entitled to decide for himself whether the liability under the decree was or was not a debt, as contemplated by the Act, and if he found it was not, to disregard the notice under Section 34 and proceed with the execution.