REVATI MOHAN ROY Vs. BHIK CHAND BHUIAN

JUDGEMENT

(1.) In this case, the petitioner had instituted an account suit against the opposite party. His case was that the opposite party, Bhik Chand Bhuian, had worked as his Naib, that be had failed to render proper accounts of the collections and that a considerable sum of money amounting to about Rs. 1000 was due from him to the petitioner. The opposite party filed a written statement in the suit, in which he contended that there was no relationship of principal and agent between the parties, that he had already rendered proper accounts to the petitioner and that, if accounts were taken, it would be found that money was actually due from the petitioner to the opposite party. After filing the written statement the opposite party made an application to the Nasimpur Debt Settlement Board under Section 8, Bengal Agricultural Debtors Act. The Board thereupon issued a stay order under Section 34 of the Act and on 2nd May 1938, the Munsif, Second Court of Narayanganj, stayed all further proceedings in the account suit. The petitioner then filed an application in the Court of the Munsif under Section 151, Civil P.C. In that application he maintained that the liability of the opposite party which was the subject-matter of the account suit was a contingent liability and was therefore not a liability which could be investigated by the Debt Settlement Board under the Bengal Agricultural Debtors Act. He therefore contended that the Civil Court had no jurisdiction to stay further proceedings in the suit in pursuance of a notice under Section 34 of the Act. The learned Munsif, without investigating the question whether or not the alleged liability fell within the scope of the Bengal Agricultural Debtors Act, rejected the petitioner's application under Section 151, Civil P.C., on the grounds that his only remedy was to move the Appellate Court constituted under the provisions of the Bengal Agricultural Debtors Act, in order to obtain a rescission of the order of the Debt Settlement Board. The first point for consideration in this case is whether or not the procedure adopted by the Munsif in rejecting the petitioner's application under Section 151, Civil P.C., was correct. The learned Munsif in his order dated 11 June 1938, stated that the contention of the applicant was that the debt due from the opposite party was an unascertained debt. From a reference to the petition filed by the petitioner, however, it would appear that the petitioner's main contention on this point was misunderstood by the learned Munsif. In the petition he laid particular emphasis upon the contention that the alleged debt was a contingent liability. If he had been able to sustain this contention, it is clear that the liability in question would have been a protected liability under the provisions of Section 2(8)(i), Bengal Agricultural Debtors Act, and - would therefore have been entirely beyond the scope of the provisions of the Act. This being the :case, as the petitioner had expressly raised a question before the Munsif as to whether the alleged liability fell within the scope of the Act or not, it was clearly the duty of the Munsif to investigate this matter and give his decision on this point before rejecting the petitioner's request that the stay order under Section 34 of the Act might be abrogated. If the learned Munsif had decided that the liability of the opposite party fell outside the scope of the Act, he would have had jurisdiction to rescind the stay order and proceed with the trial of the account suit under the ordinary provisions of the law. The jurisdiction of Civil Courts in connexion with applications of this nature was recently discussed in considerable detail by S.K. Ghose and Mukherjea JJ. in Civil Revn. No. 937 of 1938 and Ref. No. 5 of Nur Mia V/s. Noakhali Nath Bank Reported in under Order 46, Rule 1, Civil P.C. In his judgment in that case, S.K. Ghose J. stated that he was of opinion that it is for the Court on receipt of notice under Section 34 to decide the question, not only that there is a proceeding pending before it, but also that the subject- matter of that proceeding is a debt as defined in the Act. If the Court finds it is not such a debt, then the notice under Section 34 cannot operate so as to stay the proceedings in the Civil Court.

(2.) Mukherjea J. agreed with the conclusion of S.K. Ghose J., and in doing so, he made the following observations: It has already been held in a series of cases by this Court, vide the cases in Jagabandhu Roy Choudhury, Firm V/s. Bhusai Bepari , Ramendra Nath Mondal V/s. Dhananjoy Mondal and Jatindra Mohun Mandal V/s. Elahi Bux (1938) 42 C.W.N. 5360, that when a debt is satisfied by an execution sale and no proceeding in respect of a debt can be said to be pending before a Civil Court, the Court is not bound to stay any proceeding by way of confirmation of sale or otherwise even if this proceeding is expressly mentioned in the notice under Section 34, Bengal Agricultural Debtors Act. I think that it is equally correct to say that the Court can refuse to stay a proceeding; or a suit if it is satisfied upon enquiry that there is-no proceeding or suit pending before it which is in respect of any debt as defined by the Bengal Agricultural Debtors Act.

(3.) Further in dealing with the functions of the Debt Settlement Board under Section 18(1) of the Act, the learned Judge after quoting the Section says: In my opinion, the word "debt" here has the same meaning that is given to it by Section 2, Clause (8) of the Act, and the enquiry contemplated by this Section is not one as to whether the liability amounts to a debt at all within the meaning of the Act, but whether a debt as defined by the Act and which is alleged by the party to exist as a fact; and if so, what is its amount.