Kalidas Chakravarty v. Kalipada Mondal Sao — 1947 DIGILAW 40 (CAL)

JUDGMENT Mitter, A.C.J. 1. On the 2nd of August, 1929, the Appellant before us got a decree for money against the Respondents. That decree was passed by the Munsif of Raghunathpur in the District of Manbhum, which is a scheduled District. That decree was transferred to the Court of the Subordinate Judge at Bankura for execution, and the Appellant before us after the transfer of the decree to the Bankura Court applied for execution there. While the execution proceedings were pending the Respondents, namely the judgment-debtors, applied for settlement of their debts before the Debt Settlement Board of Tiluri in the District of Bankura. Their application for settlement of debts was transferred to the Special Debt Settlement Board, Bankura Sadar. That Board issued a notice on the 26th of February, 1940, to the Court of the Subordinate Judge, Bankura, where the execution case was proceeding. The notice was under sec. 34 of the Bengal Agricultural Debtors Act. Thereupon the learned Subordinate Judge of Bankura by an order dated the 13th of March, 1940, stayed execution proceedings. Later on, the Appellant before us, namely, the decree-holder, made an application to the executing Court for vacating the said order. His application was refused by an order dated the 21st of April, 1942. Against the said order he preferred an appeal to the learned District Judge of Bankura. The learned District Judge of Bankura dismissed the appeal Against that the Appellant before us preferred an appeal to this Court, being Appeal from Appellate Order No. 295 of 1942. That appeal came up before our learned brother Henderson, J., who dismissed the appeal, but granted leave to appeal under clause 15 of the Letters Patent. The Letters Patent appeal was filed in the year 1944 and it has now come up for hearing before us. While the Letters Patent appeal was pending the Bengal Council passed an Act, namely, Act XVI of 1946, by which a number of earlier statutes were repealed in part or wholly. Sec. 34 of the original Act, namely, the Bengal Agricultural Debtors Act, Act VII of 1936, was substituted by sec. 18 of Act VIII of 1940, which received the assent of the Governor on the 2nd of May, 1940, and came into operation in July of that year. Sec. 34 of the original Act, namely, the Bengal Agricultural Debtors Act, Act VII of 1936, was substituted by sec. 18 of Act VIII of 1940, which received the assent of the Governor on the 2nd of May, 1940, and came into operation in July of that year. Sec. 18 runs thus:-- For section 84 of the said Act" (namely, Act VII of 1986) "the following section shall be substituted, namely;-- 2. Then what is to be substituted is mentioned. By Act XVI of 1946 the whole of Bengal Act VIII of 1940, that is to say, the Act which amended the original Act was repealed. A saving clause was inserted in Act XVI of 1946 by the provisions of sec. 4 thereof. On these facts the first contention of the learned Advocate for the Appellant is that we would have to determine the rights of the parties by reference to the provisions of Act XVI of 1946. Proceeding on that assumption his, argument is that as Act VIII of 1940 has been repealed totally there is no longer on the Statute Book sec. 34 as it stood in Act VII of 1936, that is to say, we must proceed on the footing as if there is no provision for staying proceedings in execution, as neither sec. 34 of the original Act nor sec. 34 as substituted by Act VIII of 1940 is in existence at the present time. To support this contention he relies upon sec. 9 of the Bengal General Clauses Act and his contention is that the repeal of sec. 34 as introduced by Act VIII of 1940 by Act XVI of 1946 does not revive sec. 34 of the parent Act, namely, of Act VII of 1936, inasmuch as there is no express provision in Act XVI of 1946 for the revival of that section of the parent Act. Sec. 9 of the Bengal General Clauses Act runs as follows :-- (1) In any Bengal Act made after the commencement of this Act it shall be necessary, for the purpose of reviving, either wholly or partially, any enactment wholly or partially repealed, expressly to state that purpose. 3. Assuming his contention to be correct that the effct of the repeal of sec. 34 as enacted in Act VIII of 1940 is not to revive sec. 3. Assuming his contention to be correct that the effct of the repeal of sec. 34 as enacted in Act VIII of 1940 is not to revive sec. 34 of the parent Act, which had been supplanted by the Act of 1940, we will have to consider the effect of sec. 4 of Act XVI of 1946. The relevant portion of that section runs as follows:-- ..................and this Act shall not affect the............effect or consequences of anything already done............... 4. In the case before us, the act that had already been done before the passing of Act XVI of 1946 was the issue of the notice under sec. 34 by the Debt Settlement Board, Bankura Sadar, on the 22nd of February, 1940, when sec. 34 was on the Statute Book; and the plain meaning of this portion of sec. 4 of Act XVI of 1946, which we have quoted, is that the effect or consequences of that notice is not to be affected by the repeal of sec. 34. The effect of the notice issued under sec. 34 was defined in that section itself and its effect is to stay proceedings in the Civil Court till the application under sec. 8 to the Debt Settlement Board was either dismissed in respect of the said debt or included in the award, etc. The result is, notwithstanding the repeal of sec. 34 by Act XVI of 1946, the effect of the notice which was issued in 1940 under sec. 34 of the Bengal Agricultural Debtors Act still continues. 5. The alternative argument of the learned Advocate for the Appellant is that the question before us should be determined by the provisions of Act VII of 1936, namely, the parent Act as it stood before its amendment by Act VIII of 1940. The position is this: according to decisions of this Court sec. 20 of the parent Act precluded the Civil Court from going into the question as to whether a debtor was a debtor within the meaning of the Bengal Agricultural Debtors Act, but did not prevent the Civil Court from going into the question whether a debt came within the provisions of the Bengal Agricultural Debtors Act or not. 20 of the parent Act precluded the Civil Court from going into the question as to whether a debtor was a debtor within the meaning of the Bengal Agricultural Debtors Act, but did not prevent the Civil Court from going into the question whether a debt came within the provisions of the Bengal Agricultural Debtors Act or not. Sec. 20 of the parent Act was amended by Act VIII of 1940 and the result of this amendment is that the Civil Court is not only precluded from determining the question as to whether a debtor is a debtor within the meaning of the Act, but also the question whether a debt is a debt within the Act. 6. Although the parent Act had used the words "Civil Court" in many parts of that Act, there was no definition of the words "Civil Court" in the Act itself. Act VIII of 1940 introduced the definition of the words "Civil Court". The definition of "Civil Court" as introduced by the Act of 1940, is in these words: "Civil Court" means a Civil Court within the meaning of the Bengal, Agra and Assam Civil Courts Act, 1887 and includes any Court exercising appellate or revisional jurisdiction over any such Court. 7. Even before the definition of Civil Court was introduced by the amendment of 1940, the majority of the Judges of the Special Bench held that the words "Civil Court" meant a Civil Court within the meaning of the Bengal, Agra and Assam Civil Courts Act, 1887. [See Tansukdas v. Chogemull 48 C.W.N. 613 (1939)]. The last portion of the definition, namely, "includes any Court exercising Appellate or revisional jurisdiction over any such Court", is the only effective addition by the amending Act of 1940. The detritions of the word "debt" as given in the parent Act did not undergo any amendment, except in respect of one matter which is not material for the appeal that we are deciding. The definition runs as these words: 'debt' includes all liabilities of a debtor in cash or in kind, secured or unsecured, whether payable under decree or order of a civil court or otherwise. 8. Ordinarily the word "debt" would not include a judgment, debt and it is by reason of this deunmon that a decree of a Civil Court, in a debt. 8. Ordinarily the word "debt" would not include a judgment, debt and it is by reason of this deunmon that a decree of a Civil Court, in a debt. If there is a decree of a court, it can only come within the detention of the word "debt" as given in the Act, if it is a decree of a Civil Court, that is to say, of a Civil Court within the meaning of the Bengal, Agra and Assam Civil courts Act of 1887. If it is the decree or order of a Court not within the, meaning of the Bengal, Agra and Assam civil Courts Act, 1887, it would not be a debt within the meaning of the Bengal Agricultural Debtors Act in spite of the words "or otherwise" mentioned therein. This being the position, Mr. Dhar's argument is that as the question before us has to he determined on the law as it stood when the notice under sec. 34 was issued, namely, as it stood in February, 1940, it is open to the executing Court to consider whether the decree passed by the Court of the Munsif of Baghunathpur in the District of Manbhum, a scheduled district, is a debt within the meaning of the Bengal Agricultural Debtors Act or not, and as that Court is a Court established in a scheduled district it cannot be considered to be a Court within the meaning of the Bengal, Agra and Assam Civil Courts Act as that Act had no operation proprio vigore in the scheduled districts by reason of the provisions of the Scheduled Districts Act (XIV of 1874). We are unable to accept this contention for the following reasons. No doubt, the Bengal, Agra and Assam Civil Courts Act, 1887 did not apply proprio vigore to the district of Manbhum, which is a scheduled district. Sec. 3 of the Scheduled District Act provides that the Local Government can by notification issued in the local gazette extend any Act to the Scheduled Districts. By a notification issued by the local Government, the Bengal, Agra and Assam Civil Courts Act, 1887, was extended to the district of Manbhum and as a result of that extension Courts of Munsifs were established in those Districts. By a notification issued by the local Government, the Bengal, Agra and Assam Civil Courts Act, 1887, was extended to the district of Manbhum and as a result of that extension Courts of Munsifs were established in those Districts. We accordingly hold that the Court of the Munsif at Raghunathpur is a Civil Court within the meaning of the Bengal, Agra and Assam Civil Courts Act, 1887. The decree passed by the Munsif' of Raghunathpur, therefore, is a decree, passed by a "Civil Court" and therefore it is a debt within the meaning of the Act. There can be no question that the executing Court, namely the Court of the Subordinate Judge at Bankura, is a Civil Court within the meaning of the Bengal Agricultural Debtors Act. On these reasons we hold that the executing Court was right in staying the execution proceedings after the receipt of the notice issued under sec. 34 by the Special Debt Settlement Board, Bankura Sadar. The result is that this appeal is dismissed with costs. Akram, J. I agree.