Kailash Chandra Bhowmik v. Ram Kanai Chakravarty And Ors. Opposite Party

The Judgment of the Court was as follows:—

The Petitioner is one of the judgment-debtors in a proceeding for execution of a mortgage decree and the Rule is directed against an order of the Munsif, 3rd Court, Sudharam, dated 15th November, 1937, refusing to stay the execution proceedings after receipt of a notice from the Debt Settlement Board under sec. 34 of the Bengal Agricultural Debtors Act. The facts necessary for the purpose of this Rule may be shortly stated as follows:

The Opposite Party No. 1 is the mortgagee decree-holder who obtained a mortgage decree on 9th April, 1931. The original mortgagor is Opposite Party No. 2 and the Petitioner is the purchaser of one of the mortgaged properties at an execution sale and he has acquired the other property by inheritance and partition after the death of his father who purchased the same at a private sale. He was impleaded as a Defendant in a mortgage suit and the usual mortgage decree was passed. The mortgaged properties were put up to sale and purchased by the decree-holder on 27th July, 1933. The sale was subsequently set aside and the present application for execution was made in 1937. After the execution proceedings were started, the Petitioner made an application to the Debt Settlement Board under sec. 8 of the Bengal Agricultural Debtors Act and the Board issued a notice to the Court under sec. 34 of the Act. The Munsif, before whom the execution case is proceeding, at first granted a stay but later on vacated the order on the ground that the Petitioner was not a debtor and consequently was not competent to present any application for settlement of his debts under sec. 8 of the Bengal Agricultural Debtors Act. Against this order, there was an appeal taken to the Court of the District Judge of Noakhali and the learned District Judge dismissed the appeal and upheld the decision of the trial Court. It is conceded before me that the appeal was misconceived and incompetent in law and I have been invited by this Rule to revise the original order of the Munsif refusing to stay the execution proceedings.

As I have said above, the Munsif has refused to stay the proceedings on the ground that the Petitioner was not a debtor and as such was not competent to come under the Agricultural Debtors Act. It is quite true that the condition precedent for giving the Board jurisdiction to issue a notice under sec. 34 of the Bengal Agricultural Debtors Act is the inclusion in the petition under sec. 8 of a debt in respect of which a suit or proceeding is pending before a civil or a revenue Court. Vide, the case of Jagabandhu Saha v. Rashmani Dasya (1). If the proceeding had already come to an end by reason of the fact that the debt was discharged or satisfied by sale of the judgment-debtor's property, then there would be nothing to stay and the Civil Court could not be called upon to exercise jurisdiction under sec. 34. [See, the cases of Jagabandhu Roy Choudhury v. Bhusai Beyari (2) and Ramendranath Mandal v. Dhananjoy Mondal (3)]. In the present case, however, there is no dispute that there is a proceeding in execution pending before the Civil Court in respect of a debt and the decree of the Civil Court in the mortgage suit is conclusive evidence as regards the existence of the debt.

The contention of Mr. Sen who appears on behalf of the Opposite Party is that there might have been a debt and a proceeding in respect of the same but the present Petitioner was not a debtor and he could not in law invoke the jurisdiction of the Bengal Agricultural Debtors Act in his favour. What is said is this, that he did not borrow any money and was under no personal liability to the mortgagee decree-holder. He was the purchaser of certain properties which were undoubtedly subject to the mortgage debt but the equity of redemption which he purchased was in law a right and not a liability. This contention in my opinion cannot succeed. It is not open to a Civil Court, on receiving a notice under sec. 34 of the Bengal Agricultural Debtors Act, to investigate the question as to whether the applicant before the Board was a debtor or not. See, the cases of Nursingdas Tunsookdas v. Chogemull , Harish Chandra Pal v. Chandra Nath Saha and Soilabala v. Nityananda . This has to be decided by the Board under sec. 20 of the Act and the decision can be revised by the Appellate officer appointed under sec. 40 of the Act.

But even assuming that the Civil Court is at liberty to enter into this question, I cannot accept the contention of Mr. Sen that a purchaser of the equity of redemption who was made a party to the mortgage suit and against whom the usual mortgage decree was passed was not a debtor within the meaning of law. A debt, as defined in the Bengal Agricultural Debtors Act, includes all liabilities of the debtor in cash or kind, secured or unsecured, whether payable under a decree or order by a Civil Court or otherwise and whether payable presently or in future. There is a decree in the present case against the Petitioner who is liable to pay the mortgage money in default of which the mortgaged property is to be sold. The fact that he cannot be made personally liable does not really affect the question.

I would, therefore, make the Rule absolute and set aside the order of the learned Munsif. The execution proceedings are directed to the stayed.

Having regard to the conduct of the judgment-debtor which is not at all honest, I make no order for costs in this Rule.

P.C