BAIJNATH TAMAKUWALLA Vs. TORMULL

JUDGEMENT

(1.) The applicant before me, Tormull Marwari, the defendant in suit No. 722 of 1936, was liable for the sum of some Rs. 7000 to the plaintiff in that suit, Baijnath Tamakuwalla, as a result of certain transactions in piece goods. The plaintiff obtained a decree in the High Court, a portion was paid and there remained a balance of Rs. 1,742-3.0. Execution was taken out in this Court and the decree was sent for execution to Dumka in Bihar where the defendant has real property. Thereupon, after attachment but before sale, a notice was received by this Court under Section 34 of Act 7 of 1936 and the effect of this notice was communicated to the Dumka Court. This notice of motion was taken out by the defendant and judgment-debtor, Tormull, for an order that the Sub-divisional Officer, Rajwabal, that is Dumka, be directed to stay further proceedings in Money Execution Case No. 11 of 1937, that an order be issued to the Registrar "to recall the copies of the decree" etc., and for further relief in the shape of an injunction and so forth. Substantially, it is an application for stay. Now the respondent to this application, the decree-holder represented by Mr. K. P. Khaitan, argued the following points. No objection was made on the technical question of procedure. The first point argued was that the Act did not apply to the High Court decrees. There is no definition of Court" in the Act, and Mr. Khaitan relied, although this is not his principal point, on a decision of this Court on the appellate side, to the effect that decrees of the High Court of Calcutta are not affected by the Act. Mr. Panckridge J. took the view that they were, and I am of the same opinion. I cannot find in this Act anything which would legitimately exclude decrees of the High Court or other Courts not within the scheduled districts, from the effect of the Act. Mr. Khaitan's second point is a technical one, namely, that the execution having now gone to the Dumka Court which is outside Bengal, the Act cannot affect it. I agree that the Act cannot affect anything outside the province. Mr. Khaitan then argued, on various cases, that this Court having parted with the decree, the proceedings in the Dumka Court must be regarded as independent, that this Court has parted with control over them and should not interfere.

(2.) My own view is this that if under this Act, execution of the decree is either automatically stayed or to be stayed by an order, this Court should take such steps as are necessary to make that order or result effective. I do not think it is even necessary to recall the order but in the absence of any machinery or indication as to what should be done, it would probably be sufficient to record here that the execution has been stayed and inform the Dumka Court to that effect. The real question is one of jurisdiction. Has this Court jurisdiction to question the jurisdiction of the Board at Malda to deal with this particular case. There is, again, a minor question of procedure. If there is such a right or power in the High Court, when should it be invoked? Should it be invoked by way of mandamus by way of a declaratory suit, or, as here, by way of an application for stay? Should it be invoked after a decision by the Board as to its jurisdiction, or irrespective of such decision? Those points-have not been discussed and no technical objection has been taken to the matter being gone into by me in this application. I go therefore to the question of law. There have been decisions in this Court, both on the appellate side and on the Original Side, namely that of Panckridge J., to the effect that the Debt Conciliation Boards are vested with final and exclusive jurisdiction to decide their own jurisdiction, to decide in other words whether a particular person, either applying under the Act or being applied against under the Act, is what is called in the Act a "debtor", but should much more properly be called an agriculturist. It is quite true however that the point argued by Mr. Khaitan was, if at all argued before the other learned Judges, not fully argued. I fully accept Mr. Khaitan's proposition of law that Courts having limited or subordinate or special" jurisdiction are not ordinarily unfettered in their own decisions, regarding the limits of their own jurisdiction; that ordinarily the supreme Court of the land has jurisdiction to decide whether the special Court or Court of limited jurisdiction has, or has not, rightly decided as to its own jurisdiction. But there is no inherent obstacle to a Court of special jurisdiction being vested with exclusive and final jurisdiction. That is purely a question for the Legislature.

(3.) I also agree with Mr. Khaitan that in order to vest the subordinate Court or Court of special jurisdiction with exclusive and final jurisdiction, the powers in question should be given to it in clear terms, subject to this, that it can also be a matter of inference where the indications are sufficient to justify such inference. I also agree that there is some sort of presumption against the grant of jurisdiction to the exclusion of the supreme Court of the land. Now with regard to this Act. First of all, as to the general nature of its provisions. The principle of it is this : There is a separate set of Courts created for the decision of civil claims against a certain class of persons: a certain class of prospective defendants. It is not exactly a subordinate system; it is a parallel system. I know of nothing precisely analogous to it. Possibly, the jurisdiction of Ecclesiastical Courts over clergy might form an analogy, and I am not sufficiently familiar with the history of the English law. It is a separate jurisdiction for a certain class of persons. All claims against agriculturists are withdrawn from ordinary Courts. They are not liable to defend themselves in the ordinary Courts and have no right to do so. They have no right to defend themselves in the ordinary Courts. It is a compulsory arbitration for all cases in which certain persons are claimed against. Coming to specific sections under Section 8, either the debtor or the creditor may apply for this special arbitration or jurisdiction. Under Section 17, the petition or application may be summarily dismissed. Under Section 20 which is the material section if any question arises in connexion with proceedings before a Court under this Act, whether a person is a debtor or not, the Board shall decide the matter.