NURSINGDAS TUNSOOKDAS Vs. CHOGEMULL

JUDGEMENT

(1.) This is in form an every day application for execution, but it none the less raises a question of great importance and considerable difficulty as to the construction of the Bengal Agricultural Debtors Act, 1935. On 20 December 1935, a consent decree was made against the defendants for Rs. 52,000 payable by instalments, and secured on zemindaries in, the District of Jalpaiguri and shares in a limited company. There was default on the defendants part, and on 30 Augusts 1937, the Official Receiver was appointed receiver of the zemindaries and shares at the instance of the plaintiff. The order of 30 August was varied by a consent order of 7 September, under which two private receivers were appointed with liberty to sell in execution the securities mentioned in the schedule of the decree. Pending the sale of the securities, a notice under Section 34, Bengal Agricultural Debtors Act, has been received by the Registrar of the Original Side. The notice is not set out in the petition, and the plaintiff says that he has not received a copy. I understand however that it is admitted that the notice is by the Debt Settlement Board established by the Local Government under Section 3(i) of the Act . for all areas known as Sanyasakata in the District of Jalpaiguri, which was notified under Section 1 (3) of the Act on 26 June 1936. The notice is to the effect that the defendants have applied to the Board for a settlement of their debts under Section 8 (i) of the Act, and have in terms of Section 11 included in their statement the judgment debt in this suit.

(2.) The defendants claim that under Section 34 the notice has the effect of staying the present suit until the Board has adjudicated, and alternatively they say that Section 35 of the Act specifically forbids execution of a decree of a Civil Court for a debt included in an application under Section 8, until the application has been dismissed by the Board in respect of such debt, or until an award made under the Act has ceased to subsist. The plaintiff has now applied for an order on the receivers to sell the shares, and to carry out the other directions in the consent order of 7 September. The plaintiff has advanced several arguments, of which by far the most important is that Secs.34 and 35, and indeed the Act generally have no application to the Original Side of the High Court, because its territorial jurisdiction does not lie within an area that has been notified under Section 1 (3). In this he certainly has authority to support him in Bhagwan Dayal Saha V/s. Chandulal Agarwalla . In that case a money suit was pending in Court of the Subordinate Judge of Darjeeling; before a decree had been made, one of the defendants applied to the Settlement Board of Parbatipur under Section 8 and the Board issued a notice under Section 34 to the Court of Subordinate Judge, who however declined to stay the suit as against the defendant in question. The defendant applied to this Court in its Civil Revisional Jurisdiction to set aside the Subordinate Judge's order. The Court (Costello Ag. C. J. and Edgley J.) dismissed the application. Costello Ag. C. J. observed as follows: .... Fortunately however in the present case we are able to say that the learned Judge was right as regards one other conclusion at which he arrived, or rather one other ground on which he refused to recognize the notice as being effective. That ground is stated by him in this way: Act 7 of 1936 has not been brought into force in Darjeeling District under Section 1 (3). It has been admitted by the learned advocate appearing for the petitioner here, who, as I have said, is one of the many defendants in the suit, that in fact the Act has not been put into force in the Darjeeling District. There seems to be a curious inconsistency with regard to the manner in which this Act is described. Section 1 (i) says this: This Act may be called as the Bengal Agricultural Debtors Act, 1935. It also seems to be described as Bengal Act 7 of 1936 . There is a notification of 26 June 1936 which gives a list of certain districts in which the Act is to be operative. That list does not include Darjeeling. In these circumstances, it seems quite clear that the Court in Darjeeling was not in any way subject to the provisions of the Act, and the learned Judge was quite entitled to take no notice of the letter which was sent under date 25 May 1937. In any event this is clearly not a matter which comes within the scope of Section 115, Civil P.C.

(3.) The judgment of Edgley J. is to the same effect. Now this decision is not binding on me sitting on the Original Side, although it is naturally one that I am bound to treat with the greatest respect. Moreover, it is possible legitimately to distinguish that case from the one before me. As the concluding words from the passage which I have cited show, Costello Ag. C. J. was of opinion that, apart from the merits, Section 115, Civil P. C, was not in the circumstances applicable. Again, in Bhagwan Dayal Saha V/s. Chandulal Agarwalla no decree had been made when the notice was issued, and therefore the express prohibition of execution proceedings to be found in Section 35 did not have to be considered. However there is no advantage in disguising the fact that I cannot bring myself to agree with the construction of the Act that commended itself to the Court in that case. I only feel called on to say that the report does not contain the argument, and from the judgments,. I think, it can properly be inferred that the Court had not the advantage of a systematic and illuminating analysis of the Act such as I have had the pleasure of hearing from Mr. Das.