NARSING DAS TANSUKDAS Vs. CHOGEMULL

JUDGEMENT

(1.) This is an appeal from a decision of Panckridge, J. given on 14 December 1937, whereby he held that part of a consent decree of this High Court was barred from execution by reason of the provisions of Secs.34 and 35, Bengal Agricultural Debtors Act, 1935. The decree in question was in Suit No. 1051 of 1935 and was dated 20 December 1935; it provided for the payment of Rs. 52,000 with interest in certain instalments, and the charging of certain properties set out in the schedule for the payment of the said decretal amount. The plaintiffs are a registered firm carrying on a business as commission agents at No. 9, Armenian Street, Calcutta. The defendants are members of a joint Hindu family governed by the Mitakshara School and are said to be carrying on a coparcenary business in piece-goods at Jalpaiguri, Bengal, under the name and style of Sewlal Momraj Agarwalla. Chogemull is described as the karta of the said Hindu family. The plaintiffs supplied the defendants with piece-goods from time to time and also lent them money on hundis bearing interest at 12 per cent, per annum. The moneys owing were to be paid by the defendants to the plaintiffs at No. 9, Armenian Street, Calcutta. On 7 August 1934, accounts between the parties were adjusted and stated in writing in the plaintiffs books and signed by the defendants. The amount so stated as owing was Rupees 72,435-13.6. On 28 May 1935 the plaintiffs claim with interest amounted to Rs. 80,491-13-9. In para. 5 of the plaint in the original suit it was stated: That the plaintiffs cause of action arose partly within and partly without the limits of the jurisdiction of the Original Side of the High Court in Calcutta. Plaintiffs crave leave to institute the suit in the Calcutta High Court "under Clause 12 of the Letters Patent."

(2.) Such leave was granted. On 20 December 1935, a decree was passed by the Calcutta High Court (Original Side) in favour of the plaintiffs against the defendants for the sum of Rs. 52,000 with interest at 6 3/4 per cent, per annum from the date of the decree until realization. The decree was by consent. In a schedule annexed to the terms of settlement and forming part of the decree certain properties were mentioned as being charged with the payment of the decretal amount. The properties comprise lands and buildings in Jalpaiguri and some shares in certain companies. All the properties mentioned are situate in the town of Jalpaiguri and are houses or shops with land; none of them are described as agricultural. It is further stated in the decree that the plaintiffs are entitled to take out execution against the properties charged and sell the same without the necessity of a separate suit, and that the plaintiffs have the right to have a receiver appointed on notice to the defendants. There was default on the defendants part in carrying out the terms of the decree and on 30 August 1937 the Official Receiver of the High Court was appointed receiver of the properties above mentioned, including the shares. On 9 September 1937, in order to save the expenses of the Official Receiver, by an order of the Court, the Official Receiver was discharged and two attorneys, Messrs. R.C. Deb and J.N. Sharma, were appointed joint receivers of the properties charged in place of the Official Receiver with liberty to sell the said shares (but not the real property) and pay the proceeds of the sale to the plaintiffs or their attorneys in satisfaction of the decree. On or about 18 September 1937, the defendants applied under Section 8, Bengal Agricultural Debtors Act, to the Sannyashi Kata Debt Arbitration Board, situate in the District of Jalpaiguri, for settlement of their debts in accordance with the provisions of that Act. On that date a notice, pursuant to the Rules framed under the Act, was sent by the Chairman of the Sannyashi Kata Debt Arbitration Board to the Original Side of this Court as follows: It is submitted that I notify under Section 34, Bengal Agricultural Debtors Act of 1935,that a petition with particulars of debt under Section 8 of the said Act, has been received by this Board. A debt has been mentioned therein as due by Ohhogmul Agarwalla and Kishorilal Agarwalla, sons of late Momraj Agarwalla, and Bhojraj Agarwalla, Oaste Vaisya, of Sannyashi Kata. And in respect of the said debt, Suit No. 1051 of 1935 is pending in your Court between Narsingdas Tansukdas, a registered firm carrying on business as Commission Agents, Oaste Oswal of No. 9, Armenian Street, Caloutta, and the above parties.

(3.) This notice was received by the High Court on 21 September 1937 and copies of it were sent by the Registrar, Original Side, to the attorneys of both parties on 29 September 1937. On 8 November 1937, the defendants solicitors wrote to the plaintiffs solicitors informing them of the application to the Debt Settlement Board and further stating: In the circumstances, under Section 34 of the said Act, all proceedings herein are stayed until the disposal of the application before the Board.