Henderson, J.:— This Rule has been obtained by the decree-holder and it is directed against an order of the Munsif staying proceedings taken by the petitioner to execute a decree obtained by him against the opposite party.
The petitioner is a limited liability company carrying on a business in motor accessories in Calcutta. The opposite party Pabna Motor Service, carried on transport business in the district of Pabna. Tyres and other motor accessories were from time to time supplied to the opposite party by the petitioner. Eventually the petitioner obtained a decree in the Presidency Small Cause Court for Rs. 539-6-3. Some sums were paid, but eventually the decree was transferred to the Munsif's Court at Pabna to realise the balance due. The opposite party then applied to a Debt Settlement Board. Prima facie, this is the worst abuse of that Act which has hitherto come to my notice. How a company carrying on transport business with lorries and buses can masquerade as an agriculturist, I do not pretend to know. The fact remains, however, that the opposite party did apply to a Board and that a notice was served under the provisions of s. 34 of the Bengal Agricultural Debtors Act. The petitioner then applied to the Munsif to disregard the notice on the same ground as that on which this Rule has been pressed, that is to say, that s. 34 has no application to the present case. The Munsif upheld the petitioner's contention but refused to go on with the case on the ground that his Court was amenable to the provisions of the Act.
Now this very point came up for decision before a Division Bench of this Court in the case of Tarak Nath Kundu… v. Panchanan Dutt…Opposite Party*. In that case the decree had been passed upon the Original Side of this Court; but that makes no difference to the effect of that decision. It was laid down that in such a case a notice under s. 34 of the Act cannot operate to stay the proceedings and the order of the Munsif continuing the execution proceedings was affirmed.
The present case is governed by the amended Act, because the opposite party went to the Board after the amended Act had come into force. By that Act the words “or whether a liability is a debt or not” were inserted in s. 20. Mr. Chakrabarti's contention is that it is now the duty of the Board and not of the Court to decide the present question.
Now, under the amended section, it is the duty of the Board to decide whether a particular debt is a debt within the meaning of s. 2, sub-s. (8) of the Act. But the question involved in the present. Rule is quite a different question. It is not whether a certain debt is a debt within the meaning of the Act, but whether-ss. 34 and 35 of the Act have any application.
On that point, there is nothing to make the previous decision with regard to s. 34 out of date it has just as much force now as it had then. Section 35 prohibits the execution of certain decrees of a civil Court. The present decree is not a decree of a civil Court within the meaning of the Act. There is, therefore, nothing in s. 35 to prohibit the Munsif from executing it.
Finally, it was contended by Mr. Chakrabarti that the present Rule was misconceived, inasmuch as the petitioner ought to have appealed to the district Court. This question was considered in the case of Naphar Chandra Sardar v. Kali Pada Das. That case was one in which the Munsif had overruled the objection and gone on with the execution. On a previous occasion I made an attempt to distinguish a case such as the present, in which the Munsif keeps the case pending. I am bound to say now that I do not think that attempt was very successful, specially in view of what was actually said by Rau, J.: “It follows that an order staying or refusing to stay execution, etc., is subject to appeal as a decree.” The most that can be said is that this is obiter dictum with regard to a case such as the present. Be that as it may, on a further consideration I should not be prepared to dissent from the opinion of a Division Bench on a matter of this kind. On this view, there can be no doubt that it was open to the petitioner to appeal to the district Court.
The question, therefore, remains whether his failure to do so prevents interference by this Court in revision. On this point the learned Judges disagreed. Nasim Ali, J. held that there was no power in revision, Rau, J. took the opposite view but was not prepared to interfere at such a stage. Now, in that case there was a Second Appeal to this Court and Nasim Ali J's decision is expressly based upon that. In the present case, there is no Second Appeal to this Court and, according to the opinion of both the Judges, it would be open to this Court to interfere in a case such as the present./That was the view taken by Mitter, J. in the case of Sashi Kanta Acharyya Bahadur v. Nasirabad Loan Office Co.. In that case he did interfere and I shall follow his decision.
The Rule, is accordingly made absolute. The order of the Munsif is set aside and he is directed to hear and determine the execution case in accordance with law.
The petitioner will get his costs—hearing fee, five gold mohurs.
Rule absolute.
A.A