Jagabandhu Saha v. Rashmani Dasya — 1937 DIGILAW 184 (CAL)

JUDGMENT Derbyshire, C.J. - In this matter, a Rule had been obtained under sec. 115 of the CPC for the purpose of considering whether the 5th Munsif of Dacca had either failed to exercise his jurisdiction or exercised his jurisdiction improperly. The circumstances were these: One Rashmoni Dasya and two other persons had obtained a decree against the judgment-debtor Jagabandhu. The property of Jagabandhu was put up to sale in execution of that decree. The Judgment-creditors bid and bought the property for about Rs. 700. The debt at that time was for something over Rs. 800. Jagabandhu brought a suit to have the sale of the property declared null and void. That suit was dismissed for non-prosecution and the confirmation of the sale followed in the usual way. Those proceedings were in Possession Case No. 42 of 1933. After that the decree-holders started Execution Case No. 73 of 1936 to realise the remainder of the decretal amount. The decree-holders apparently did not get possession of the land they had bought at the auction sale as proceedings were drawn out and eventually in 1936 the Bengal Agricultural Debtors Act came into operation and the debtor who claimed to be an agriculturist took steps under that Act to have his affairs dealt with by a Settlement Board. That Settlement Board forwarded a notice to the Court in which the above execution proceedings were still pending. The notice was in this form: I am giving notice under sec. 34, Bengal Agricultural Debtors Act, 1935, that the Board has received an application under secs. 8 and 13(1) of the Act which includes a debt payable by one Jagabaudhu Saha, son of late Dasarath Saha of Arania, in respect of which between the decree-holders Rashmoni Dasya, Bejoy Chandra Saha and Birendra Chandra Saha and the judgment-debtor aforesaid Execution Case No 42 of 1933 and Miscellaneous Case No. 37 of 1936 are pending in your Court. 2. Miscellaneous Case No. 37 of 1936 is the same as No. 73 of 1936. The learned Munsif proceeded to deal with the matter according to law and, in so doing, he stayed the proceedings in Miscellaneous Case No. 73 of 1936, but declined to stay them in the case of No. 42 of 1933. In the case of No. 42 of 1933 the only matter pending now is claim for possession of the property purchased by the decree holders. In the case of No. 42 of 1933 the only matter pending now is claim for possession of the property purchased by the decree holders. Case No. 73 of 1936 is an ordinary Execution case for, as I have stated earlier, the balance of the money owing after the decree-holders had purchased the property put up for sale. 3. The provisions of the Bengal Agricultural Debtors Act are somewhat novel. This Act was passed for the purpose of enabling the debts of agriculturists in Bengal to be dealt with in such a way that the debtors could have.some hope of paying their debts. For that purpose, Boards were brought into being and given powers, limited it is true, of adjusting the indebtedness between the parties. Sec. 2 (8) defines "debt" as including: all liabilities of a debtor in cash or in kind, secured or unsecured, whether payable under a decree or order of a Civil Court or otherwise, and whether payable presently or in future, but does not include 4. Then follow a number of liabilities which are excluded from the meaning of the word " debt." We are not concerned with these exceptions. Sec. 8 (1) provides: Subject to the provisions of sec. 9, a debtor may make an application for the settlement of his debts to a Board established for the local area within which he ordinarily resides within five years after the first Board is established. 5. With sea 9 we are not concerned. Sec. 13 (1) provides for further statement of debts by the debtor and creditors. Sec. 34 provides: When an application under sec. 8 or a statement under sub sec. (1) of sec. 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, and thereupon the suit or proceeding shall be stayed until the Board has either dismissed the application in respect of such debt or made an award thereon, and if the Board includes any part of such debt under clause (d) of sub-sec. (1) of sec. 25 in the award or the Board decides that the debt does not exist, the suit or proceeding.shall abate so far as it relates to such debt. 6. (1) of sec. 25 in the award or the Board decides that the debt does not exist, the suit or proceeding.shall abate so far as it relates to such debt. 6. It was contended before the learned Munsif, as it is contended before us, that under that section on receipt of the notice which I have read out the learned Munsif ought to have stayed both these proceedings. I think it is necessary to look at the position which arose when the judgment-creditors bought the judgment-debtor's property at the auction and subsequently when proceedings were taken to set aside the sale which failed. Or. 21, r. 92 (1) of the CPC says: Where no application is made under rule 89, rule 90 or rule 91, or where such application is made and disallowed, the Court shall make an order confirming the sale, and thereupon the sale shall become absolute. Sec. 65 of the CPC says: Where immoveable property is sold in execution of a decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute. 7. It appears to me, applying Or. 21, r. 92 and sec. 65 to the facts of that auction sale and the proceedings to set it aside in 1933, that the property of the judgment-debtor sold at auction and purchased by the decree-holders vested in the decree-holders from the time of the sale. That being so, a part of the debt of the judgment-debtor to the judgment-creditors was at that time satisfied, i.e., to the extent of Rs. 700 or so. 8. It is true they had not yet obtained possession of the land at the time the notice under sec. 34 of the Bengal Agricultural Debtors Act was sent to the Court. In my view, however, that does not make any difference. 9. Case No. 73 of 1936 was in respect of the balance of the debt that remained owing after the auction-sale. That balance was still owing and Case No 73 of 1936 is in respect of that debt. In my view the learned Munsif was right and acted in accordance with the provisions of sec. 9. Case No. 73 of 1936 was in respect of the balance of the debt that remained owing after the auction-sale. That balance was still owing and Case No 73 of 1936 is in respect of that debt. In my view the learned Munsif was right and acted in accordance with the provisions of sec. 34 of the Bengal Agricultural Debtors Act when he stayed those proceedings in Case No. 73 of 1936 upon receipt of that notice. 10. As regards Case No. 42 of 1933 the matter is different. Here the debt was satisfied and the proceedings were not in respect of a debt,-that is in a suit, or in satisfaction of a debt-that is in the ordinary execution proceedings. The proceedings at the date of the receipt of the notice under sec. 34 were in respect of possession and were not founded upon a debt such as is necessary, in my view, to enable sec. 34 to take effect. That debt had previously been satisfied. 11. In my view, therefore, the learned Munsif in declining to stay the proceedings in Case No. 42 of 1933 and in ordering a stay in Case No. 73 of 1936 acted in accordance with the provisions of sec. 34 of the Bengal Agricultural Debtors Act. For those reasons I am of the opinion that this Rule must be discharged with costs, hearing-fee-two gold mohurs. Mukherjea, J. 12. I agree with my Lord the Chief Justice in the decision and the reasoning and I would like to add only a few words. 13. The facts of the case are not disputed and the whole controversy centres round the short point as to whether a proceeding for delivery of possession started by an auction-purchaser is really a proceeding in respect of a debt that was wiped off by the auction-sale. In my opinion, the answer to the question must be in the negative. The condition precedent for giving the Board a jurisdiction to issue a notice under sec. 34 of the Bengal Agricultural Debtors Act, 1935, is the inclusion of a debt in the petition under sees. 8 and 13 of the Act in respect of which a suit or proceeding is pending either in the Civil or in the Revenue Court. In the case before us the sale took place in 1935 which wiped off a major portion of the debt. 8 and 13 of the Act in respect of which a suit or proceeding is pending either in the Civil or in the Revenue Court. In the case before us the sale took place in 1935 which wiped off a major portion of the debt. The decree-holders obtained a set off for this amount and the sale was duly confirmed after a suit to set aside the sale commenced by the judgment-debtor had been dismissed. The auction-purchasers' title had been absolute at the time when the Act was passed and this portion of their debt had no existence when the application under sees. 8 and 13 of the Bengal Agricultural Debtors Act was made. The proceeding so far as it was in connection with Execution Case No. 42 of 1933 that was still pending, was only for delivery of possession to the decree-holders auction-purchasers; and, although that may be a proceeding in execution within the meaning of sec. 47 of the CPC as held in the Full Bench case of Kailash Chandra Tarafdar v. Gopal Chandra Pod day 30 C. W. N.649 (F. B.)(1928), it was certainly not a proceeding in respect of or to recover a portion of the debt which alone would bring the case within sec. 34, Agricultural Debtors Act. This section contains a provision which is ancillary to the settlement of the debt which is the main object of the Act and for which an application has got to be made under sec. 8. If the debt was already satisfied by the auction-sale which took place prior to the passing of the Act, the Board obviously would have no jurisdiction to revive that debt by setting aside the execution sale and no question of settling a debt can arise when the debt itself has got no existence. The result of the proceeding for delivery of possession would not affect that portion of the debt in any way. That the legislature did not contemplate a proceeding like the one to come within sec. 34, Agricultural Debtors Act is apparent from the concluding lines of the section which lay down that if the Board decides that the debt does not exist the suit or proceeding shall abate no far as it relates to such debt. That the legislature did not contemplate a proceeding like the one to come within sec. 34, Agricultural Debtors Act is apparent from the concluding lines of the section which lay down that if the Board decides that the debt does not exist the suit or proceeding shall abate no far as it relates to such debt. In my opinion this makes it clear that the suit or proceeding must be one for recovery of a debt, for otherwise there will be no sense in saying that these proceedings would cease when the Board would make an award negativing the existence of the debt itself. For these reasons I am of the opinion that the view taken by the Court below is right and that the Rule must be discharged.