NARASIYANA VENKAPPA v. P. THIMMAPPA — 1958 DIGILAW 94 (KAR)

K. S. HEGDE, J. ( 1 ) THIS is an execution appeal. The appellant is the legal representative of the first judgment-debtor. The respondents decree-holders filed Ex. Case No. 440/50-51 on the file of the munsiff, sagar, to exe-cue the decree obtained by them in O. S. No. 145 of 1929-30 on the file of that Court. The execution application was resisted by the judgment-debtor on several grounds. His objections were overruled. He went up in appeal to the learned subordinate Judge, Shimoga, in R. A. No. 15 of 1952-53. In the appeal also he failed. Meanwhile he died and his legal representative has come up in second appeal. In this appeal also several grounds were taken resisting the execution case. Only one of those grounds is pressed before me. It is contended that the judgment-debtor had Filed an application under Section 4 of the Debt Conciliation Board Act which shall be hereinafter called 'the Act' in Debt Conciliation case No. 15 of 1946-47 before the debt Conciliation Board, Sagar. The said Board shall be hereinafter called 'the Board'. Notice under Section 10 (1) of the 'the Act' was taken to the decree-holders and they were duly served. They failed to file their statements as required by Section 10 (1) of the Act. Consequently 'the board' gave declaration duly discharging the debt in question. The declaration in question was purported to be made under Section 10 (2) of the Act. This order has been made on 3-2-1948. It is urged that the said order is conclusive and binding on the parties and that the Civil Court has no jurisdiction to re-open the matter. As stated before the courts below have rejected this contention, mainly on the ground that the debt in question had been admitted by the judgment debtor in his petition filed before the Debt Conciliation Board. Hence the Debt Conciliation board had no jurisdiction to give the declaration in question. ( 2 ) UNDER Section 10 (1) of the Act, on the presentation of an application by the debtor and after examining the debtor, if the Board is of opinion that it is desirable to attempt to effect a settlement between him and his creditors, a notice shall be issued and served or published in the manner prescribed, calling upon every creditor of the debtor to submit a statement of debts owed to such creditor by the debtor. Such statement shall be in writing and shall be signed and verified in the manner prescribed by the Code of Civil Procedure, for signing and verifying claims and shall be submitted to the Board within two months from the date of service or publication of the notice as the case may be, ( 3 ) SECTION 10 (2) of the Act is as follows:-" every debt of which a statement is not submitted to the Board in compliance with the provisions of Sub-section (1) shall be deemed for all purposes and all occasions to have been duly discharged. " from these it will he seen that on the failure by the creditor to file a statement as required under section 10 (1) of the Act, there will be a statutory discharge. There is no provision in the Act which empowers the Board to pass an order of discharge. Hence the order passed by the Board on 3-2-1948 may be ignored as being superfluous. The only question that has to be considered is as to whether there is a statutory discharge in view of the respondents' failure to comply with the requirements of Section 10 (1) of the Act. ( 4 ) A plain reading of Section 10 (1) of the Act seems to support the contention advanced on behalf of the appellant. This section docs not make any distinction between a debt admitted by the Debtor and a debt which is not admitted. It does not also make any distinction between a secured debt and an unsecured debt. Incidentally it may be mentioned that the debt under consideration is a secured debt. The learned Counsel for the appellant placed considerable reliance on the decision of his lordship Happell J. in Govinda Reddi v. Rami Reddi reported in AIR 1943 Mad. 725 . In that case his Lordship considered the scope and effect of Section 10 (1) and 10 (2) of the Madras Debt conciliation Act. Section 10 (1) and 10 (2) of the Madras Act and the Mysore Act are identical. In that case his Lordship held: "under Section 10 (1) even a creditor whose debt is admitted must file a statement of debts owed to him and on his failure to do so he is subject to the penalties imposed under Sub-section (2 ). Section 10 (1) and 10 (2) of the Madras Act and the Mysore Act are identical. In that case his Lordship held: "under Section 10 (1) even a creditor whose debt is admitted must file a statement of debts owed to him and on his failure to do so he is subject to the penalties imposed under Sub-section (2 ). The words 'every debt' in Sub-Section (2) of Section 10 makes no distinction between secured and unsecured creditor. Although under Section 14 of the Act a secured creditor cannot be affected by a settlement, unless "he agrees to it, yet he is bound to file a statement under Section 10 (1) and therefore, the debt due to a secured creditor, if he does not file a statement of account, shall be deemed to be discharged under Section 10 (2) of the Ac". " this ease is apposite to the facts of the present case. ( 5 ) SRI V. Krishnamurthy, the learned Counsel for the decree-holders (respondents) contends that language used in Section 10 (2) of the Act does not bring out clearly the intention of the legislature. According to him on a true interpretation, Section 10 (2) applies only where the creditor does not file a statement where the same is not admitted. It is strongly urged that there is no meaning in wiping out an admitted debt and Legislature could not have intended to adopt a course which does not stand to reason and nothing so bad could have been intended by a legislature. Sections 10 (1) and 10 (2) are rules of pleadings, somewhat, similar to those contained in Order viii of the Civil Procedure Code. According to the Respondents, the language used in the section does not bring out clearly the Legislative intention and it is appropriate for Courts to effectuate the true intention of the Legislature. Reliance is placed on the decisions reported in 2 d. L. R. 911 (Shambhoji Rao v. P. Ramachandriah) and Bayysna Veeraraghava Rao v. Debt conciliation Board, Bezwada, AIR 1941 Mad 873 . In the case reported in 2 D. L. R. 911 their Lordships Paramasiviah and Medapa JJ. Reliance is placed on the decisions reported in 2 d. L. R. 911 (Shambhoji Rao v. P. Ramachandriah) and Bayysna Veeraraghava Rao v. Debt conciliation Board, Bezwada, AIR 1941 Mad 873 . In the case reported in 2 D. L. R. 911 their Lordships Paramasiviah and Medapa JJ. held that the object in calling for a statement of debts by the creditors is with a view to elicit whether there are debts other than those mentioned by the Debtor himself in his application due to the creditors and also to ascertain the extent of debts in case of difference between the parties and not with a view to elicit any information as regards the existence of the debts already mentioned by the debtor. Hence this statement cannot be taken to be a statement relating to the debt already mentioned by the debtor, unless the creditor disputes the correctness of the amount of debt. In the case reported in AIR 1941 Mad 873 his Lordship Leach C. J. obseved that when a creditor fails to file a statement under Section 10 (1), he should be precluded from disputing the debtor's figures, but there can be no justification for depriving him of what the debtor has acknowledged to be due to him. It will be seen that the observations found in the above cases are more or less obiter. In the mysore case the decision was founded on two grounds. In that case their Lordships held that in the notice served on the creditor, the portion relating to the penal consequences for not filing a statement of debts had been scored off, and hence the same could not be made the basis of imposing any penal consequences on the creditor. They have also held that the failure to file a statement in respect of admitted debts does not bring into operation the penalties provided under section 10 (2) of the Act. In the Madras case the decision was rendered on an entirely different point. The observations relating to the scope of Section 10 (2) was made by one of the judges as a general remark. Though it is possible to distinguish these two cases, these observations have their own importance A number of decisions have been cited before me by both the sides. But most of them have no direct bearing on the question that has arisen for consideration. Though it is possible to distinguish these two cases, these observations have their own importance A number of decisions have been cited before me by both the sides. But most of them have no direct bearing on the question that has arisen for consideration. ( 6 ) AS the point involved is an important one and is likely to come up for consideration before the lower Courts constantly, it is desirable to set the controversy at rest by a bench decision. Hence I direct that these papers may be posted before my Lord the Chief Justice for referring the same to a bench. ( 7 ) SRI V. Krishnamurthy, the learned Counsel for the respondents, has urged before me a number of other contentions. I have not found any substance in them and hence I have not referred to them. JUDGMENT OF THE DIVISION BENCH N. SREENIVASA RAU, J. : ( 8 ) THIS second appeal arises from execution proceedings instituted by the respondents. The appellant resisted the proceedings on various grounds one of them being that his father (the original judgment-debtor) had applied to the Debt Conciliation Board, Sagar, for the settlement of his debts and the decree-holders having failed to submit a statement of debts owed to them as required under Section 10 (1) of the Mysore Debt Conciliation Act, the debt sought to be recovered had, under Sub-section 2 of that scciion, to be deemed as duly discharged. ( 9 ) THE executing court overruled all the objections and the decree holders were permitted to proceed with the execution. In the appeal filed against this order the judgment-debtor docs not appear to have pressed other points, the arguments being confined to the point mentioned above. The learned Subordinate Judge, who heard the appeal, agreed with the view of the Court below and dismissed the appeal. Hero also the only point urged is that the decree had ceased to be executable by virtue of Section 10 (2) of the Mysore Debt Conciliation Act. ( 10 ) IN overruling the judgment-debtor's objection the Courts below relied upon the decision reported in 2 D. L. R. 911. Hero also the only point urged is that the decree had ceased to be executable by virtue of Section 10 (2) of the Mysore Debt Conciliation Act. ( 10 ) IN overruling the judgment-debtor's objection the Courts below relied upon the decision reported in 2 D. L. R. 911. In that decision the learned Judge took the view that the statement of debts required to be filed under Section 10 (1) of the Act cannot be taken to relate to a debt already mentioned by the debtor, unless the creditor disputes the correctness of the amount of the debt. In the case on hand the judgment debtor had himself mentioned in his application under section 4, the debt that was due by him to the decree-holders under the decree though he had asked for the reduction of interest. It was held by the lower courts that there being no dispute regarding the correctness of the amount of the debt the above mentioned ruling applied. As Section 10 (2) does not on a plain reading seem to make any distinction between a debt admitted by the debtor and a debt not admitted by him as different views appeared to have been expressed by the Madras High Court and other High Courts on this point and as the point is an important one, this case was posted before a Division Bench. ( 11 ) THE learned Advocate for the appellant has sought to distinguish the decision reported in 2 D. L. R. 911 on the ground that the view expressed in regard to the applicability of Section 10 (2) to a debt admitted by the debtor is obiter because the court found that as a matter of fact no notice in terms of Section 10 (1) had been served on the creditor and that service of such a notice is the foundation for the penalty under Section 10 (2 ). (Vide Shanmuga-velayudham Pillai- v. Ramanathan Chettiar AIR 1949 Mad 620 ). It is no doubt true that while adverting to the notice the learned Judges mention that the portion in it referring to the penalty resulting from the non-filine of the statement of debts had been scored off, that the Board ordered notices to issue under Section 10 (1) of the Debt Conciliation act to the creditors to produce accounts and observe that the failure to file accounts etc. , precludes the creditor from adducing them in evidence and will not have the effect of discharging the debt. But Section 10 also came up for consideration and the view expressed is that the statement of debts required to be filed under Section 10 (1) cannot be taken to be a statement relating to the debt already mentioned by the debtor unless the creditor disputes the correctness of the amount of the debt. It is contended by the learned Advocate for the appellant that this view is not warranted by the clear language of the section. He relies upon the decision reported in AIR 1943 Mad 725 in which Happell J. , took the view that as Section 10 (1) refers to every debt it makes no distinction between secured and unsecured debts and it makes no difference whether it is admitted by the debtor or not and that failure on the part of the creditor to submit a statement as required under section 10 (1) attracts the penalty under Section 10 (2 ). Some other decisions also were cited at the Bar and may be referred to. In In re Siddappa Chettiar, AIR 1942 Mad 738 , Byers, J. , while considering the contention that Section 10 (2) applies only to debts which have been shown by the debtor in his application under Section 4, observed: "i do not think there can be any doubt about the meaning of the plain words in Section 10 (2) of the Act, the effect of which is that any debt not included in the creditor's statement is for all purposes deemed to have been discharged. " support was sought by the learned Advocate for the respondents from the observations of Leach c. J. , in AIR 1941 Mad 873 , to the effect that there is no justification for depriving the creditor of what the debtor has acknowledged to be due. But a reading of the whole judgment shows that the learned Chief Justice was commenting on what he thought to be the undue severity of the provision itself on the creditor and how it lent itself to maladministration of the Act. This would go to support the view contended for by the appellant. But a reading of the whole judgment shows that the learned Chief Justice was commenting on what he thought to be the undue severity of the provision itself on the creditor and how it lent itself to maladministration of the Act. This would go to support the view contended for by the appellant. Indeed, according to what is stated in Balasubramania Chetty v. Walajabad Dhanasekara Saswatha Nidhi Ltd. , AIR 1948 Mad 146, the Madras Act was amended suitably as a result of the consequences of the provision being pointed out in the above two decisions. In Balwant Singh v. Barkat Ram, AIR 1943 Lah 158, also relied upon by the respondent, the question considered was whether the Debt Conciliation board functioning under the Punjab Relief of Indebtedness Act, 1934. acted within its jurisdiction when it proceeded on the footing that the creditor bad not filed a statement of account though apparently it was admitted that sufficient evidence of the decree which constituted the debt had been given to the Board. The Court held that the decree having been really brought to the notice of the Board no further proof of the debt was necessary. The facts of the case are not quite clear and there is no discussion bearing specifically upon the provision under the Punjab Act corresponding to section 10 (2) of the Mysore Act. ( 12 ) IN Gian Dass v. Saudagar Singh, AIR 1943 Lah 259, another decision cited for the respondents, the court held that "filing of a copy of the decree by the creditor was sufficient compliance with the requirement to put in a statement of account. " in the Punjab Act also there is a provision corresponding to the proviso to Section 12 (2) of the mysore Act which provides that a decree of a Civil Court relating to a debt shall be conclusive evidence as to the existence and amount of the debt. It was therefore held that a decree filed by a creditor-decree-holder performed two functions, i. e. , it contained both a statement of the debt due as well as its proof. It will thus be seen that in the Court's view, there was substantial, compliance by the creditor with the requirement to file a statement. ( 13 ) IN Mahomed Din v. Phula Singh, AIR 1944 Lah 127. It will thus be seen that in the Court's view, there was substantial, compliance by the creditor with the requirement to file a statement. ( 13 ) IN Mahomed Din v. Phula Singh, AIR 1944 Lah 127. it was observed that when particulars of a debt are already given in the debtor's petition it is hardly necessary for a creditor to repeat the same in his written statement and that the Board in holding that the debt was discharged because a copy of the decree had not been filed was exceeding its jurisdiction. There was no occasion to consider the consequence of the creditor's failure to file a statement. ( 14 ) IN Nihal Singh v. Hazara Singh, AIR1954 Pandh 120. the Board purported to discharge the debt duo to the creditor on the ground that he did not produce the original document evidencing the debt though he had filed a written statement. When the creditor filed a suit to recover his debt, the question arose whether the Board's discharge order was a bar to the suit. The learned Judges held in effect that there was no such bar. This again was not a case of the creditor failing to file a statement. ( 15 ) IT will thus be seen that none of the decisions relied upon for the respondents supports their contention or has any real bearing on the question at issue, except the observations in 2 D. L. R. 911 referred to above. ( 16 ) IT is urged for the respondents that the Board has no power to direct that a debt is discharged and rely upon the observations in AIR 1944 Lah 127 and Adi Subbayya v. Suhba Sastry AIR 1946 Mad 103 . It is true that the Act does not contemplate any order discharging the debt being made by the Board since Section 10 (2) provides that the discharge shall be deemed to occur automatically, In the case on hand, the Board has not directed the discharge of any debts but noted, 'the creditors have not presented statements as required under Section 10 (1), the debts in question are deemed to have been duly discharged under Section 10 (2) of the Debt Conciliation act. ' We see nothing wrong in such a note. ' We see nothing wrong in such a note. In fact the recognition of the automatic discharge of debts may very well be necessary for the further proceedings of the Board. ( 17 ) ADVERTING to the main question in the case it seems to us that the language of Section 10 (2)as also the scheme of the Act leave little room for doubt that a failure on the part of a creditor to file a statement in conformity with the requirements of Section 10 (1) automatically attracts the penalty lhat the debt shall be deemed for all purposes and all occasions to have been duly discharged, subject, of course, to the revival of the debt on the granting of an application in that behalf on proof that notice was not served on him etc. This penalty follows irrespective of the debt being admitted in the debtor's application under section 4 and the particulars furnished by him under Section 6 and irrespective of the fact whether the debt is a secured one or an unsecured one. The object of the Act as stated in the preamble is to relieve agriculturist from indebtedness by amicable settlement between them and their creditors. The scheme of the Act is to compel the parties concerned to submit to the process of conciliation at the hands of the Debt Conciliation Board which is the machinery created for the purpose. Though the most important function of the Board is to bring about an amicable settlement, it is also vested with certain limited powers of adjudication. In providing an amicable settlement, to secure relief for the agriculturist debtor the Board has to take into consideration the resources of the debtor and his over-all liability. This necessarily means that the cooperation of all creditors has to be secured. If it is the debtor that makes the application it has to contain the particulars mentioned under Section 6 (1) including the amounts and particulars of all claims against him together with the names and residences of his creditors. If the application is by the creditor, the debtor on his appearance, has, under Section 8 (3) to furnish the particulars mentioned in Section 6 (1 ). If the application is by the creditor, the debtor on his appearance, has, under Section 8 (3) to furnish the particulars mentioned in Section 6 (1 ). Unless the debtor's application is rejected for non-compliance with any of the preliminary requirements or dismissed on the ground that in the opinion of the Board it is not desirable or practicable to effect a settlement or that the debtor fails to pursue his application with due diligence or that he has included a claim which is collusive and intended to defraud the creditor, the Board has to notify every creditor calling upon him to submit a statement of debts owed to him within two months from the date of service of notice. There is also a provision for extension of time for good and sufficient cause for the submission of the statement. It is in this context the provision occurs which declares that every debt of which a statement is not submitted shall be deemed for all purposes and all occasions to have been duly discharged. The object is obviously to enable the Board to have all the requisite data for an effective settlement and the Legislature apparently had it in mind that any creditor who failed to render such assistance did so at the peril of losing his claim altogether. ( 18 ) IT i. s contended by the learned Advocate for the Respondents that there is no justification for depriving a creditor of his rights under an admitted claim as would be the case when the debtor has admitted the debt in his application. It is further urged that when under Section 12 (2) a decree of a civil Court is made conclusive evidence as to the existence and the amount of the debt there would be no meaning in putting the creditor to the necessity of making a superfluous statement when the decree is admitted and that when the debt is a secured debt the Board itself has no substantial right of interference with it. The position might be so if in alt cases it is only a matter between the debtor and the particular creditor. But the scheme of the Act is to effect a settlement in respect of all the debts of a particular debtor. The position might be so if in alt cases it is only a matter between the debtor and the particular creditor. But the scheme of the Act is to effect a settlement in respect of all the debts of a particular debtor. Under Section 12 the Board has to call upon each creditor to explain his case regarding each debt and the section empowers the Board to decide any dispute regarding the existence or the amount of the debt due to any creditor after taking such evidence as may be adduced by all the parties concerned, though it has no power to go behind a decree of a civil court relating to a debt in this context. Thereafter it has to prepare a complete schedule of the creditors and of the debtors assets and liabilities. With the data so arrived at an effort at settlement has to be made and if the creditors to whom more than 50 per cent, of the total amount of the debts is owing come to an amicable settlement with the debtor, such settlement has forthwith to he reduced to writing in the form of an agreement and after it is read out and explained to the parties concerned has to be signed or authenticated by the Board and the parties who have agreed to the amicable settlement. Thereafter if the debtor makes a fair offer to any creditor who has not come into the scheme the board may pass an order that the debt shall bo settled in accordance with such offer. The terms of the agreed settlement are to form the criteria for judging the fairness of the offer. A secured creditor, however, can refuse an offer, but only if it involves a reduction of the principal. Under Section 16 the amount allowable to any creditor in satisfaction of both principal and interest is limited to twice the amount of the principal. The scheme as disclosed by the above-mentioned provisions predicates that the Board should lie able to have an over-all picture of the debtor's position in regard to his resources and liabilities so as to enable them to promote a fair settlement. And in order to allow the Board to function effectively if is necessary that every credit for should co-operate with the Board. And in order to allow the Board to function effectively if is necessary that every credit for should co-operate with the Board. Even if the debtor has admitted the liability of a particular creditor, that circumstance is not enough to enable the Board to fulfil its functions. Whether the creditor is a secured creditor or an unsecured creditor e. g. , under Section 12 when the Board has to call upon each creditor to explain his case regarding each debt and can take such evidence as may be adduced by all the parties concerned. Under Section 14 it is contemplated that as agreement with creditors to whom more than 50 per cent. of the debts is owing should be secured after fully explaining the position to the parties concerned and the debtor is given the opportunity of making a fair offer to the creditors who had not come into the agreement including a secured creditor, though in the case of the latter the fair offer should not affect the amount of the principal. An effort at settlement on the above lines would undoubtedly be hampered, if a creditor fails to file a statement as required under Section 10. Jt is for this reason that the Legislature has thought it proper to penalise such non-cooperation by declaring that the debt shall be deemed for all occasions and all purposes duly discharged. The importance of securing the timely co-operation of all the creditors is emphasised by Sub-section 5 of Section 15 which provides that if any debt which is deemed to have been discharged is revived on proper cause being shown the agreement arrived at and all proceedings taken in pursuance thereto shall stand cancelled and the process has to start again, It may be mentioned that a similar though lesser penalty is provided under section 11 when a creditor fails to produce full particulars of the debt and all relevant documents including entries in the books of account relied upon to support the claim. The document is rendered inadmissible in evidence against the debtor in any suit brought by the creditor. The document is rendered inadmissible in evidence against the debtor in any suit brought by the creditor. There can therefore be no doubt both from the clear language of Section 10 (2) and the scheme of the act that a creditor, whether scoured or unsecured, whether his claim is admitted or not by the debtor in his application under Section 4 and particulars under Section 6, incurs the penalty if he fails to submit a statement as required under Section 10 (1 ). Whether the penalty provided is excessive or not is not a matter for the Court to say when the language of the Act is clear. It is for the Legislature to amend the provision if in its view such amendment is called for. In this connection it may be recalled that the Madras Legislature did effect such an amendment in the corresponding provision of the Madras Act by limiting the creditor's disability to disentitling him from disputing the particulars in regard to his debt furnished by the debtor. ( 19 ) IT appears to us, therefore, that the view of the Court's below that the penalty under Section 10 (2) of the Act would not be attracted to this case is wrong. ( 20 ) THERE is, however, another point to be considered. It is contended for the respondents that the board had no jurisdiction to embark on the proceedings since the debtor was neither residing within the jurisdiction of the Board nor did he own any property there. Section 4 (1) of the Act reads : "a debtor may make an application for the settlement of his debts to the Board established for the local area within which he ordinarily resides, or if no board has been established for that local area, to the board established for any local area in which he holds immoveable property, if any, but shall not apply to more than one board. " it is therefore clear that if a board functions over an area in which the debtor resides it is that board that has jurisdiction to entertain the application in the first instance and that if no board functions over that area the debtor can make an application to the board having jurisdiction over the area where he owns immoveable property. Reliance is placed by the learned Advocate for the respondents upon the case reported in Shivdin Kalnram v. Ramratan Udaram, AIR 1937 Nag 259, in which with reference to the corresponding provision of the C. P. Debt Conciliation Act it is observed : "debtor is defined in Section 2 (i) of the Act, and Section 4 provides that a debtor or any of his creditors may apply to the Board appointed for the area in which any holding, land or village of the debtor or any pan thereof is situate to effect a settlement between the debtor and his creditors subject to this proviso that no application shall be made if the debtor's debts exceed 23,000 rupees or such larger amount as may be prescribed for each area. From this it is clear that the board has no jurisdiction to effect a settlement except between a debtor as defined above and his creditors, and if the Board exercised a jurisdiction which is not conferred by the Act, then all proceedings before the Board and orders passed by it are invalid. . . . . . If the Board had no jurisdiction to attempt to effect a settlement between the debtor and his creditors, as for example where the debtor has no land in the area for which the Board has been appointed or where the debtor's debts exceed Rs. 25,000, or the prescribed figure, then all proceedings before the Board would be entirely invalid and though there may be an agreement which purports to be one under sub-section (2) of Section 12, there would in effect be no procedure under the Act at all and the civil Court would have jurisdiction to inquire into the facts which would show that the Board had no jurisdiction. " there can be no doubt that if the proceedings before the Board themselves were without jurisdiction they cannot affect the rights of the parties and the respondents cannot be held to have incurred the penalty under Section 10 (2) of the Act. This is, however, a matter on which the courts below have given no decision. This was possibly because in the view they took of Section 10 (2) of the Act they felt it unnecessary to consider this point. This is, however, a matter on which the courts below have given no decision. This was possibly because in the view they took of Section 10 (2) of the Act they felt it unnecessary to consider this point. It is seen from the execution petition that the respondents have alleged that the judgment-debtor, being a resident of Soraba Taluk and the Debt Conciliation Act not being in operation in that taluk, had no right to make an application to the Debt Conciliation Board, Sagar, and that the latter had no right to deal with such a petition. The judgment-debtor met it by stating that he is a holder of land in and resident of Kanle village. Sagar Taluk, and that therefore he was entitled to make the application to the Debt Conciliation Board, Sagar Taluk. In their reply the decree-holders denied the truth of these statements and alleged that the judgment-debtor was a permanent resident of Soraba Taluk. These allegations and counter allegations were not inquired into as the case appears to have been posted for arguments on the applicability of Section 10 (2) of the Act and disposed of on that point Since this question of jurisdiction goes into the root of the matter it is necessary that it should be inquired into. ( 21 ) SRI Somasekhara Rao, the learned Advocate for the appellants, urges that the question whether the Board had jurisdiction Or not was one to he considered by the Board itself and that if any party who had to appear before it failed to appear or to urge the question of jurisdiction it would not be open to such party to urge that point in the Civil Court, nor would the Civil Court have jurisdiction to go into the question. From the final portion of the passage in the Nag-pur decision quoted above, i. e. , AIR 1937 Nag 259. it seems to be indicated that the Civil Court would have jurisdiction to inquire into the facts which would show that the Board had no jurisdiction. The learned Advocate for the respondents has also relied upon the decision reported in Burmah shell and Storage and Distributing Co. of India Ltd. v. Labour Appellate Tribunal of India, AIR1957 Mad 60 to show that jurisdictional facts are open to investigation by the Court before which the question of the jurisdiction of a tribunal comes up for consideration. The learned Advocate for the respondents has also relied upon the decision reported in Burmah shell and Storage and Distributing Co. of India Ltd. v. Labour Appellate Tribunal of India, AIR1957 Mad 60 to show that jurisdictional facts are open to investigation by the Court before which the question of the jurisdiction of a tribunal comes up for consideration. But this aspect of the matter also relates to and is part of the question of jurisdiction and it will be open to the parties to urge their contention on this aspect of the question also. ( 22 ) WE accordingly set aside the order of the Courts below and remand the execution application to the executing Court for disposal according to law after giving both the parties an opportunity to establish their respective contentions on the question of the Board's jurisdiction, ( 23 ) AS we are allowing this appeal on a question of law, in regard to which we have taken a view different from that relied upon by the Courts below, we think that the proper order as to costs is for the parties to bear their own costs of this appeal. Hegde, J. ( 24 ) I agree. ( 25 ) ORDER accordingly.