HARISH CHANDRA PAL Vs. CHANDRA NATH SAHA

JUDGEMENT

(1.) The petitioner in this Rule filed an application as a creditor under Section 8 (2), Bengal Agricultural Debtors Act, 1935 before the Chandina Settlement Board in the district of Tipperah. Thereupon the Board sent a notice under Section 34 of the Act to the 3 Court of the Subordinate Judge at Comilla asking him to stay proceedings in the Money Execution Case No. 261 of 1936 in which the opposite party to this Rule was the decree-holder. The Subordinate Judge accordingly stayed further proceedings. But on 6 September 1937, he received a letter from the Chairman of the Settlement Board to the effect that the application made by the petitioner had been dismissed and the stay notice was withdrawn. The petitioner states that the aforesaid order was made by the Settlement Board on the representation of the decree-holder opposite party and the reason assigned by the Chairman in his letter was that the Board thought that the amount of debt due to the petitioner was more than Rs. 1000 and so the permission of the Sub-divisional Officer was necessary before a notice under Section 34 could be issued.

(2.) The petitioner thereafter moved the Board on the 7 September. The Board then held an enquiry at a special meeting and, cancelling the previous decision, held that the debt was Rs. 343-10-6 as alleged by the petitioner and that the judgment-debtors ordinarily resided within the jurisdiction of the Board and further their primary means of livelihood was agriculture. The Board thereupon sent another notice under Section 34 of the Act to the Subordinate Judge and at the same time communicated to him the reason for their decision. The petitioner also, it appears, filed an application before the Subordinate Judge stating that the petitioner was prepared to prove by evidence that the facts found by the Debt Settlement Board in his favour were correct. The Subordinate Judge however by his order dated 10 September 1937 refused to stay the proceedings in his Court in accordance with the notice of 7 September. His order goes to show that he considered that the Board's orders of 5 and 7 September were inconsistent and relying on an affidavit and a counter affidavit filed before him, he held overriding the decision of the Board that the debtors were not debtors within Section 2 (9) of the Act and that they did not ordinarily reside within the jurisdiction of that Board. He accordingly held that the notices issued by the Board under Section 34 were illegal, invalid and without jurisdiction. Against that order the present Rule has been obtained.

(3.) It is contended for the petitioner that the Subordinate Judge acted beyond his powers in holding that the Civil Court can refuse to accept the findings of the Board as to the amount of the debt and as to whether the judgment-debtors are agriculturists and that he overlooked the provisions of the Act which give to the Board and to the appellate officer constituted under the Act the sole jurisdiction to decide those questions. It is quite clear that in this case the Debt Settlement Board had come to express findings as to the amount of the debt and as to whether the judgment-debtors are debtors within the meaning of the Act. Apparently it did so in course of proceedings under Section 13 of the Act. The Act has been brought into operation quite recently, but it has already come under the consideration of this Court on many occasions. There is a number of cases in which it has been held that after the sale has taken place and the decree has been satisfied, there is no debt existing and so a notice to stay proceedings under Section 34 of the Act cannot be complied with: Jagabandhu Saha v. Rashmany Dassya (1937) 41 CWN 924, Nrishingha Chandra Nandi V/s. Kedar Nath , Manindra Mohan Roy V/s. Bepin Behari (1937) 41 CWN 1366, Jagabandhu V/s. Bhusai Bepari and Ramendra Nath Mondal V/s. Dhananjoy Mondal (1937) 42 CWN 218. In the last mentioned case, it is said that it may be that where the entire sale proceeds are not exhausted by way of satisfying the decree, the Court must stay the proceedings with regard to the balance remaining by reason of the notice under Section 34. In Bhagawan Dayal Sahu V/s. Chandulal Agarwala it was held that the notice was not valid as being addressed to a Court constituted in an area to which the Act did not apply.