Decided on July 06,1949

Shivaram S/O Tulsiram And Anr. Appellant
Gangabisan S/O Deokisan Respondents


Rege, J. - (1.)THE facts leading to this appeal are that the Respondent Gangabisan had obtained a decree against Tulsiram Devaji and his brother Dayaram in the year 1937 of which he sought execution by an application dated 16th February 1946 registered as Case No. 450 of 1946. The Appellants debtors had in the meanwhile obtained a discharge of the debt in the proceedings (Case No. 182 of 1942) before the Debt Conciliation Board Kannod, on 23rd July 1943 and opposed the application for execution on that ground. The decree -holder contended that the order of the Debt Conciliation Board was ultra vires because a previous application by one of the debtors viz. Tulsiram alone had been dismissed and a second one was incompetent at least so far as that debtor was concerned and secondly that he had fulfilled the conditions of the notice given to him and the debt could not have been discharged. The trial Court dismissed the application for execution, but in appeal the learned District Judge Indore held that the order of the Board was ultra vires.
(2.)TWO questions arise for determination in this appeal:
1. Was the second application incompetent?

2. Is the order of the Debt Conciliation Board discharging the debt without jurisdiction?
It appears from the record of case No. Ill of 1941 (1944 in the judgment of the District Judge is wrong) of the Debt Conciliation Board Kannod that on 4th August 1941 an order was made not dismissing the application as stated by the District Judge but discharging the debt of Gangabisan on two grounds:
(1) That the debt was not due from Tulsiram alone and

(2) that Gangabisan had failed to produce a statement of his accounts. If the first ground prevails the debt could not have been adjudicated before and the matter cannot be said to be res judicata. A second application would therefore be competent. If, on the other hand the second ground is taken as the basis for the decision the debt must be held to have been discharged. For one, I think that the debt being a joint one, this order of the Board should be considered to be on the first ground and the second application is therefore proper; but in any case it cannot be said to be incompetent, so far as Dayaram is concerned; and if the first application is held to be proper the order of discharge of the debt so far as Tulsiram is concerned is not shown to be ultra vires.

(3.)THE proceedings of case No. 182 of 1942 must be looked at to determine the second contention. The learned Judge had relied on Ex. D -2 which discharged the debt. It says

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