BROJA BASHI ROY Vs. NAGARBASHI CHOUDHURY

JUDGEMENT

(1.) In this case, a rule has been obtained by Broja Bashi Roy, a judgment-debtor, against Nagar Bashi Choudhury, the decree, holder and certain other people, to show cause why the order of the learned Sessions Judge of Tippera dated 22 July, 1937 should not be set aside. It appears that Nagar Bashi Choudhury obtained a mortgage decree against the petitioner on 2 May, 1936 and that in execution of that decree the property of the petitioner was put to sale and was purchased by the decree-holder, Nagar Bashi Choudhury on 9 October 1936. The petitioner then instituted proceedings under Order 21, Rule 90, Civil P.C. in order to have the sale set aside. He was successful in these proceedings and the sale was actually set aside on 24 April 1937. The decree-holder appealed against this order on 31 May 1937. While the appeal was pending in the Court of the learned District Judge, the judgment-debtor, Broja Bashi Roy, obtained a stay order from the Debt Settlement Board at Nayergaon on 23 June 1937 and this order was duly communicated to the Appellate Court. The learned District Judge however ignored the stay order and proceeded to hear the appeal on 3 July 1937, and by his order dated 22 July, 1937 he allowed the appeal from the decision of the Munsif, under which the Civil Court sale had been set aside. It is against this order of the learned District Judge that the petitioner has moved this Court in its revisional jurisdiction under Section 115, Civil P.C.

(2.) The first point urged by the learned advocate for the petitioner in this case is that the learned District Judge was in error in holding that there was no debt in existence at the time when he heard the appeal. With regard to this point, in my opinion there can be no doubt that as soon as the sale was set aside by the order of the Munsif on 24 April 1937, the position of the decree-holder and the judgment-debtor was restored to the position as it stood before the order was made: in other words, the debt which had been extinguished by the sale was revived as soon as the Munsif's order was passed : and it followed that at the time when the learned Judge heard the appeal on 3 July 1937, there was an un-adjusted debt owing by the judgment-debtor to the decree-holder. The next point argued on behalf of the petitioner was with reference to the view taken by the learned District Judge to the effect that, in any case, an Appellate Court is not bound to comply with the terms of a notice issued under Section 34, Bengal Agricultural Debtors Act, 1935. With regard to this point, it was urged that the language used by the Legislature in Section 34 of the Act is sufficiently wide to include both suits and appeals within the scope of matters which must be stayed by a Civil Court on receipt of a notice under this section. In my view, there is considerable force in this contention. The first part of Section 34 reads as follows: When an application under Section 8 or a statement under Sub-section (1) of Section 13 includes any debt in respect of which a suit or other proceeding is pending before a Civil or Revenue Court, the Board shall give notice thereof to such Court in the prescribed manner....

(3.) The use of the word "other" before the term "proceeding" is peculiar; and it seems to imply that the term "proceeding," is intended to cover suits, appeals and all other matters connected with litigation which can come before a Civil or Revenue Court, in respect of the debts to which the section relates. In Section 141, Civil P. C, some distinction appears to have been drawn between suits" and proceedings" but this does not appear to be the case under Section 34, Bengal Agricultural Debtors Act. It would seem therefore that the Legislature intended to make the section as wide as possible in order to prevent all Civil and Revenue Courts from dealing with matters relating to debts in respect of which notices have been issued under this section. As pointed out by Panckridge J. in Nursingdas Tunsookdas v. Chogemull (1937) 42 CWN 293: The main intention of the Act is however clear, and it is that the liabilities of certain debtors shall be ascertained, "settled" and recovered through the agency of Settlement Boards to the exclusion of the Civil Courts. Such being the intention one should construe the Act, if possible in such a way as will carry it into effect equitably and reasonably.