JOGESH CHANDRA CHAKRAVARTY Vs. MAHESH CHANDRA CHAKLADAR

JUDGEMENT

(1.) We are invited in this Rule to consider the propriety of an order made by the first Subordinate Judge of Mymenaingh staying an execution proceeding in pursuance of a notice under Section 34, Bengal Agricultural Debtors Act 1935 (7 of 1936). The petitioner is the decree-holder who held a mortgage decree against two per-sons Mahesh Chandra Chakladar and Rai Umesh Chandra Chakladar Bahadur for a sum of Rs. 10,000 odd with costs and interest. He put the decree into execution in the Court of the First Subordinate Judge at Mymensingh, upon which one of the judgment-debtors Mahesh applied under Section 8, Sub- section (1), Bengal Agricultural Debtors. Act for settlement of his debts and in this application included the debt due under the said mortgage decree. This application was made on 15th August 1937, to the Rasulpur Debt Settlement Board, which on receipt of the application, issued a notice under Section 34 to the Court of the Subordinate nate Judge where the execution case was pending. The learned Subordinate Judge. however refused to act on the said notice on the ground that the case fell under Sub-section (2) of Section 9 of the Act, that is to say, it was a case of a debtor within the meaning of the Act being jointly liable with another person not a debtor under the Act, for a debt and applying under Sub-section (1), Section 8, for relief in respect of his liability in regard to such debt, and that the Rasulpur Board was not therefore competent to deal with the application, not being specially empowered under Section 7 to exercise any powers under Sub-section (2) of Section 9. In the result the learned Subordinate Judge by his order dated 20 August 1937, refused to stay the execution proceedings. The Rasulpur Board on the same date that it issued the notice under Section 34 made an order fixing 12 September 1937, for consideration of the application. This order was presumably made under Sub-section (1) of Section 12 of the Act.

(2.) It appears however that before the date fixed for hearing, there was an inspection of this Board by an officer of the department who is referred to as D. S. O. in the order sheet, and in consequence of a note made by this Inspecting Officer, the Rasulpur Board transmitted the record of the case to the S. D. O. purporting to do so on the ground that the amount of the claim exceeded the sum of Rs. 1000. The S.D.O. who, it may be stated, is the Collector within the meaning of Clause (7) of Section 2 of the Act, caused an enquiry to be held by a Circle Officer, and on receipt of the report of this officer, transferred the case to the Gaffargaon Debt Settlement Board which was a Board empowered under Section 7. In" making this order of transfer, the S. D. O. proceeded to deal with the question as to whether the applicant was an agricultural debtor or not. He said this: I think that the applicant who is himself an agricultural debtor can jointly claim a notice under Section 34, Bengal Agricultural Debtors Act. Before issue of such a notice no further reference need be mentioned to me.

(3.) The matter went before the Gaffargaon Board on 11 September 1937, and on this date that Board recorded the following order: This case has been transferred by the S. D. O. from the Rasulpur D. S. B. He has sanctioned the issue of notice under Section 34. Issue notice for stay of proceedings in the Sub-Judge's Court. Also issue notice under Section 13 (1) as well as general notices under Sec. 30. To 23 October 1937.