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1982 DIGILAW 80 (CAL)

Nilima Rani Nanda v. Rajeswar Pahari

1982-03-09

BIMALENDRA NATH MAITRA

body1982
JUDGMENT The judgment of the Court was as follows :–– Defendant is the petitioner. She filed the present Miscellaneous Case under section 47 read with section 151 of the Code of Civil Procedure. Her case is that the plaintiff-opposite-party instituted the Title Suit No. 126 of 1974 against her for declaration that the Kobala regarding the disputed property dated 4th September, 1968 and the Deed of Agreement No. 12426 executed between them, constituted a loan transaction within the meaning of the provisions of the Bengal Money Lenders Act. The suit was decreed ex parte against her. She filed an application under Order 9, Rule 13 of the Code. But it was dismissed for default. She filed an application under section 151 of the Code and that too was dismissed. Her allegation is that when the aforesaid proceedings were pending, the opposite party filed an application under section 4 of the West Bengal Restoration of Alienated Land Act, 1973. The Special Officer, Minakha, allowed that prayer and granted ten instalments of Rs. 220/- each. Against that order, the opposite party preferred an appeal which was dismissed on the 13th April, 1978 by the Competent Authority. In such circumstances, the petitioner contended that the ex parte decree passed in the Title Suit No. 126 of 1974 was inexecutable in Law and not binding on her. 2. The prayer was opposed by the opposite party. The defence was that the Special Officer acted beyond his limits and as such, he had no power to pass such an illegal order which was not binding on him. 3. The learned Munsif considered the arguments advanced by the parties and stated that he had jurisdiction to consider the matter. The Special Officer acted illegally in allowing such prayer. Hence accepting the opposite party's objection he held that the order passed by the Special Officer, Minakha, was without jurisdiction and the same was not binding on the opposite party. This Miscellaneous Case was therefore dismissed and the order passed by the Special Officer was set aside. He stated that, in that view of the matter, the execution case instituted by the opposite party could be proceeded with. He passed such direction that gave rise to the present revisional application. 4. It has been contended on behalf of the petitioner that the opposite party moved two tribunals. He stated that, in that view of the matter, the execution case instituted by the opposite party could be proceeded with. He passed such direction that gave rise to the present revisional application. 4. It has been contended on behalf of the petitioner that the opposite party moved two tribunals. The prayer under section 4 of the West Bengal Restoration of Alienated Land Act was filed by the opposite party with regard to the disputed transaction. The Title Suit was filed on the 16th April, 1974 and the ex parte decree was passed on the 4th September, 1974. The prayer under section 4 of the West Bengal Restoration of Alienated Land Act was allowed by the Special Officer on the 31st December, 1975. Section 3 of the Act has overriding effect and hence the Special Officer has exclusive jurisdiction to deal with the matter. The learned Munsif was, therefore, not competent to entertain the Title Suit No. 126 of 1974. Reference has been made to the case of (1) Nagubai Ammal v. B. Shama Rao, in AIR 1956 SC 593 at pages 601 and 602 to show that a person cannot approbate and reprobate at the same time. The order passed by the learned Munsif, is, therefore, without jurisdiction. 5. It has been contended on behalf of the opposite party that the question of jurisdiction of the Civil Court in this respect is well-settled after the decision of Lord Thankerton in the well-known observation of the Judicial Committee in the case of (2) Secretary of State v. Musk, in 44 CWN 709 (PC). This case was followed by Hidyatulla, C.J. in the case of (3) Dhulabhai v. State of Madhya Pradesh, in AIR 1969 SC 78 , where seven categories have been specified to show how the jurisdiction of the Civil Court is excluded, where the statute gives a finality to the orders of the Special Tribunal and there is an allegation that the provisions of the particular Act have been complied with on the Statutory Tribunal had not acted in conformity with the fundamental principles of judicial procedure. If there is an express provision in a particular Act, there also the jurisdiction of the Civil Court will be excluded. Since it was a loan transaction and not an out and out sale, the jurisdiction of the learned Munsif was not excluded. If there is an express provision in a particular Act, there also the jurisdiction of the Civil Court will be excluded. Since it was a loan transaction and not an out and out sale, the jurisdiction of the learned Munsif was not excluded. That Court was quite competent to entertain the suit, according to the provisions of the Bengal Money Lenders Act. Hence, the learned Munsif passed a correct order. 6. The first stage in the order is that there was no substantive application by the opposite party to set aside the order passed by the Special Officer. Unless such prayer was made, the learned Munsif had no jurisdiction to pass such an order. On this ground alone, this revisional application must be allowed. 7. It is common ground that the opposite party filed an application under section 4 of the West Bengal Restoration of Alienated Land Act, 1973. The prayer was allowed by the Special Officer and ten instalments were granted. Against that order, an appeal was preferred and it was dismissed on the 13th April, 1978, by the competent authority. Section 3 of the West Bengal Restoration Alienated Land Act, 1973, says that the provisions of the Act shall have overriding effect except with respect to any land, which is an evacuee property under section 3 of the West Bengal Evacuee Property Act, 1951. The disputed property is not an evacuee property within the meaning of the Proviso to section 3 of this Act of 1973. The order passed by the learned Munsif is without jurisdiction, as stated before and hence, it is unnecessary to dilate any further on the other arguments advanced by the parties. The Miscellaneous Case is thus allowed. It is thus held that the execution case cannot be proceeded with. The Rule is made absolute and the impugned order is set aside in the manner indicated above. There will be no order as to costs.