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Tamiz Ali v. Mahammad Nasar Ali Bhuiya
Structured Summary of the Opinion (Edgley, J.)
Factual and Procedural Background
The judgment-debtor is the appellant seeking to set aside an execution sale under s. 47 of the Code of Civil Procedure. The decree-holder obtained a decree for rent dated 12 July 1937. Execution was put in hand on 26 May 1938 and the requisite processes were served by 14 June 1938. The appellant applied to the Debt Settlement Board on 30 June 1938 under s. 8 of the Bengal Agricultural Debtors Act and alleges that the rent-decree was included in that application. He further alleges that the Board issued a notice under s. 34 of the Act, but notwithstanding that, an execution sale was held on 9 August 1938.
On 11 November 1938 the appellant moved the civil Court under s. 47 CPC to set aside the sale. The trial Court framed issues on (a) maintainability of the application, (b) whether the application to the Board barred the subsequent execution proceedings, and (c) whether the sale was vitiated by reason of the alleged issue of a notice under s. 34. The trial Court held the application maintainable but found against the appellant on the other two points, concluding that no s. 34 notice had been issued and that the sale of 9 August 1938 could not be impeached. The appellant's appeal to the District Judge of Mymensingh was dismissed, and the present appeal followed to this Court.
Legal Issues Presented
- Whether, upon an application being made by a judgment-debtor to the Debt Settlement Board under s. 8 of the Bengal Agricultural Debtors Act that includes the decree in question, the civil Court must set aside an execution sale under s. 47 CPC even if the Board failed to issue a stay notice under s. 34.
- What is the legal effect and operation of s. 35 of the Bengal Agricultural Debtors Act as regards the execution of decrees included in an application to the Board.
- Whether pleas which could have been relied upon before the execution sale (for example by way of a bar to execution) are waived if not taken prior to the sale, and whether authorities on waiver of pleas of res judicata are applicable to pleas under the Agricultural Debtors Act.
- Whether this Court may entertain the present appeal or should refuse leave to appeal in view of limits imposed by s. 153(a) of the Bengal Tenancy Act and authorities cited on appeals in similar low-value decrees (raised by respondents).
Arguments of the Parties
Appellant's Arguments
- The appellant submitted that because he had applied to the Debt Settlement Board under s. 8 and included the rent-decree in that application, the civil Court lost jurisdiction to execute the decree and therefore the execution sale must be set aside under s. 47 CPC as soon as the application was brought to the Court's notice.
- He relied particularly on the first part of s. 35 of the Bengal Agricultural Debtors Act, which (he contended) prevents execution of decrees for debts included in an application under s. 8 until the Board dismisses the application in respect of that debt or an award ceases to subsist.
- He conceded that ordinarily a notice under s. 34 should be issued by the Board to the civil Court and that on receipt of such notice the Court should stay proceedings, but argued that the non-receipt of the s. 34 stay-order should be treated as immaterial where the Board had failed to issue it and the judgment-debtor had actually filed the application which included the debt.
- The appellant asserted that, in those circumstances, he could bring the matter to the executing Court's attention and the Court would be bound to set aside the sale if he proved that he had applied to the Board under s. 8 and had included the relevant debt in the application.
Respondent / Decree-holder's Arguments
- The respondents argued that the question of illegality of the sale should have been pleaded at the proper stage of the execution proceedings, before the sale; such a plea is in the nature of a plea in bar and would be waived unless expressly taken prior to the sale.
- They relied on authorities (Moturi Seshayya and Rajani Kumar Mitra) to support the principle that a plea like res judicata (and analogous pleas) can be waived if not raised in time.
- They further contended that, once a rent-sale has been held, the debt must be regarded as satisfied and accordingly the matter would fall outside the operation of the Bengal Agricultural Debtors Act; in that view, a rent-sale held by the civil Court could not be set aside under s. 47 CPC in cases like the present one.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Prafulla Krishna Deb v. Nosibannessa Bibi | Principles concerning limitation on appeals to this Court in respect of small decrees (invoked to argue no appeal lies here given the decree was for Rs. 19-11-6 and s. 153(a) Bengal Tenancy Act). | The Court accepted the respondents' contention that, in view of s.153(a) and the small amount of the decree, the ordinary rule would bar an appeal; nevertheless the Court held that it could intervene under its revisional jurisdiction under s. 115 CPC because the Courts below had taken an erroneous view and acted illegally in the exercise of their jurisdiction. |
| Moturi Seshayya v. Venkatadri Appa Row (Madras High Court) | The plea of res judicata is a plea in bar that does not affect jurisdiction and may be waived if not taken timely. | The decree-holder relied on this authority to argue the appellant had waived his right to insist on the bar to execution if it was not pleaded before the sale. The Court distinguished the authority on the facts: it held the appellant was justified in assuming the Board would issue the mandatory s. 34 notice and therefore had no occasion to raise the matter before the sale; consequently the precedent was of little avail to the respondents. |
| Rajani Kumar Mitra v. Ajmaddin Bhuiya | Where a party does not put forward a plea of res judicata in a suit it must be taken to have waived it; such matters ought to have been made ground of attack and are dealt with by explanation (IV) of s. 11 CPC. | The respondents relied on this decision similarly to support waiver. The Court observed the case but held that on the facts the appellant had not waived his statutory rights under the Agricultural Debtors Act because he had filed his application and reasonably expected the Board to issue the mandatory notice under s. 34; accordingly this authority did not dispose of the appellant's contention. |
Court's Reasoning and Analysis
(This section follows the Court's step-by-step legal analysis as stated in the opinion.)
- The Court first considered the procedural question whether this appeal could be entertained. It acknowledged the respondents' point based on Prafulla Krishna Deb and s. 153(a) of the Bengal Tenancy Act concerning limits on appeals in respect of a small decree (Rs. 19-11-6). The Court accepted that contention in principle but proceeded to exercise revisional jurisdiction under s. 115 CPC because it found the Courts below had taken an erroneous view of the law and acted illegally in exercising their jurisdiction.
- On the substantive point, the Court examined the appellant's reliance on s. 35 of the Bengal Agricultural Debtors Act. The Court set out the first part of s. 35 (quoted in the opinion) which, in effect, bars execution of a decree for the recovery of a debt included in an application under s. 8 until the Board dismisses the application in respect of that debt or an award including it ceases to subsist.
- The Court analysed the interplay between s. 34 and s. 35. It observed that s. 34 imposes a mandatory duty on the Board to give notice to the civil Court in the prescribed manner so that proceedings shall be stayed until the Board either dismisses the application in respect of the debt or makes an award. Because the language of s. 34 is mandatory, the legislature intended that proceedings for execution of decrees included in a s. 8 application be automatically stayed once the application is filed before a Board.
- At the same time, the Court held it would be impossible to read s. 35 so strictly as to deprive a judgment-debtor of the statutory right conferred by the Act merely because of some carelessness by the Board in failing to issue the mandatory notice. The Court therefore accepted the appellant's contention to the extent that the non-issuance of the s. 34 notice by the Board could not automatically defeat the debtor's statutory protection.
- The Court addressed the respondents' argument—based on the authorities about waiver of pleas and on the practical effect of a rent-sale extinguishing the debt—that the appellant should have pleaded the bar earlier and that once a sale has been held the debt is satisfied and outside the Act. The Court rejected the contention that a rent-sale necessarily precludes relief under s. 47 CPC in circumstances where a s. 8 application had actually been filed. The Court emphasized (a) the strong presumption of validity attaching to an execution sale and (b) the heavy onus on an applicant under s. 47 who seeks to show the sale was illegal because of a prior application to the Board. If the applicant satisfactorily proves that he had applied to the Board under s. 8 and had included the specific debt before the sale, the Court held that the executing Court would have no option but to set aside the sale even in the absence of a formal s. 34 notice.
- The Court further explained the consequence: if a sale which had in fact extinguished the debt is set aside for this reason, the debt would revive and the provisions of the Bengal Agricultural Debtors Act would then apply to it.
- Finally, because the lower Courts had not considered whether the appellant had in fact made the application under s. 8 and whether that application included the decree in question, the Court set aside the decisions of both lower Courts and remanded the matter to the trial Court for further consideration consistent with the legal views expressed in the opinion.
Holding and Implications
Core Ruling: APPEAL ALLOWED; CASE REMANDED.
Direct consequences and operative directions given by the Court:
- The decisions of both Courts below are set aside and the case is remanded to the trial Court for further consideration on the question whether the appellant had actually made an application under s. 8 of the Bengal Agricultural Debtors Act and whether that application included the decree which was the subject of the execution sale.
- Costs are to abide the final result. The hearing-fee in this Court is assessed at three gold mohurs.
- The Court expressly stated that this order does not disturb the trial Court's findings regarding the maintainability of the application or its finding that no notice under s. 34 was actually issued by the Board.
Broader implications: The Court's ruling clarifies that a judgment-debtor who can show that he filed a valid s. 8 application including the relevant debt before an execution sale may obtain setting aside of the sale under s. 47 CPC even where the Debt Settlement Board failed to issue the mandatory notice under s. 34. The Court stressed that an applicant bears a heavy onus to establish those facts because of the presumption in favour of the validity of an execution sale. The opinion does not purport to establish a novel rule beyond these applications of the existing statutory provisions.
Edgley, J.:— The judgment-debtor is the appellant in this case and the appeal arises with reference to the dismissal of an application filed by the judgment-debtor under s. 47 of the Code of Civil Procedure, in which he sought to set aside an execution sale.
It appears that the decree-holder obtained a decree for rent against the appellant on July 12, 1937. On May 26, 1938, he put this decree into execution and the requisite processes had been served by June 14, 1938. On June 30, 1938, the appellant applied to the Debt Settlement Board for the settlement of his debts and he alleges that the rent-decree, which the decree-holder was seeking to execute, was included in the application under s. 8 of the Bengal Agricultural Debtors Act. He maintained that the. Debt Settlement Board in due course issued a notice under s. 34 of the Act, but, in spite of the issue of this notice, the execution sale was held on August 9, 1938. Thereafter, on November 11, 1938, the appellant applied to the Court under s. 47 of the Code of Civil Procedure, to have this sale set aside. Issues were framed by the trial Court with regard to the question of the maintainability of the application and also on the points whether or not the application to the Board was a bar in respect of the subsequent proceedings in execution and whether the sale was vitiated by reason of the alleged issue of the notice under s. 34 of the Bengal Agricultural Debtors Act. Although it was decided that the application was maintainable, the other two points were decided against the appellant and the trial Court held that in fact no notice under s. 34 of the Bengal Agricultural Debtors Act had been issued by the Board and that, in these circumstances, the sale, which was held on August 9, 1938, could not be impeached by the appellant. The judgment-debtor thereafter appealed to the learned District Judge of Mymensingh and his appeal was dismissed.
The main point which has been argued on behalf of the appellant in this case is that, in view of the fact that an application had been made to the Debt Settlements Board under s. 8 of the Bengal Agricultural Debtors Act, which included the decree which was the subject-matter of the execution proceedings in Execution Case No. of 1938, the Court had no option but to set aside the sale under s. 47 of the Code of Civil Procedure as soon as the fact had been brought to its notice that the application had been actually made to the Board and, in this connection, it was further contended that the non-receipt, of the stay order under s. 34 of the Bengal Agricultural Debtors Act must be regarded as immaterial. With regard to this matter, it may be noted that the appellant places particular reliance upon the provisions of s. 35 of the Bengal Agricultural Debtors Act. This was a point which was not directly raised in either of the Courts below, but, as it involves an important question of law, there is no reason why it should not be raised in this Court.
In the first place, it has been argued by the learned advocate for the respondents that no appeal lies to this Court, having regard to the principles laid down in the case of Prafulla Krishna Deb v. Nosibannessa Bibi . In view of the fact that the decree, which it was sought to execute, was in respect of a sum of Rs. 19-11-6 only, this contention must be accepted, having regard to the provisions of s. 153(a) of the Bengal Tenancy Act. At the same time, I am of opinion, for the reasons which will presently appear, that the Courts below have taken an erroneous view of the law with regard to this matter and have acted illegally in the exercise of their jurisdiction. It is, therefore, open to this Court to interfere, in the exercise of its revisional jurisdiction under s. 115 of the Code of Civil Procedure.
The learned advocate for the appellant in this case, as already pointed out, relies mainly upon the provisions of the first part of s. 35 of the Bengal Agricultural Debtors Act, which is in the following terms:—
Notwithstanding anything contained in any Act, no decree of a civil Court or certificate under the Bengal Public Demands Recovery Act, 1913, shall be executed—
(i) for the recovery of a debt included in an application under s. 8 or in a statement under sub-s. (1) of s. 13, until—
(a) the application has been dismissed by the Board in respect of such debt; or
(b) an award in which such debt is included has ceased to subsist under sub-s. (5) of s. 29.
His argument is to the effect that, as soon as an application to the Board is made under the provisions of s. 8 of the Act, the civil Court loses its jurisdiction to execute any decree which may have been included in the application in question. He admits that, according to the ordinary procedure which should be followed by Debt Settlement Boards, a notice under s. 34 of the Act should be issued to the Court concerned and that, on receipt of such notice, the Court should stay all further proceedings in the matter. He contends, however, that, in a case in which the Board failed to fulfil its duty under s. 34 and the execution sale, was held by reason of such failure, it would be open to the judgment-debtor himself, to bring the matter to the notice of the executing Court, which would be bound to set aside the sale if the judgment-debtor succeeded in showing that he had duly applied for the settlement of his debts under s. 8 of the Act and his application included the decree which had been put into execution by the sale in question.
The main argument of the decree-holder is to the effect that the question of the illegality of the sale should be pleaded at the proper stage of the execution proceedings before the sale actually took place. He contends that such a plea should be regarded as a plea in bar which should, be deemed to be waived unless such plea is expressly taken before the sale. In support of this contention reliance is placed upon the decision of the Madras High Court in the case of Moturi Seshayya v. Venkatadri Appa Row . In that case the learned Judges observed that—
It must be remembered that the plea of res judicata is one which does not affect the jurisdiction of the Court, but is a plea in bar of a trial of a suit or an issue, as the case may be, which a party is at liberty to waive.
This case was cited with approval by this Court in the case of Rajani Kumar Mitra v. Ajmaddin Bhuiya , in which the learned Judges observed that—
If a party does not put forward his plea of res judicata in a suit he must be taken to have waived it or it must be taken to be a matter which ought to have been made a ground of attack and deemed to have been a matter directly and substantially in issue in the suit under explanation (IV) of s. 11 of the Code of Civil Procedure.
In the cases cited above, it would appear that the plea of res judicata had not been expressly taken in the pleadings and it was on this account that it was held that this defence had been waived. In the present case, however, it cannot be said that the appellant had at any time waived his right to rely on the provisions of s. 35 of the Bengal Agricultural Debtors Act. As soon as he filed his application to the Debt Settlement Board on June 30, 1938, he was justified in assuming that the Board would comply with the mandatory requirements of s. 34 of the Act and would issue a notice to stay all further proceedings in execution of the decree in respect of any debt which might have been included in his application. Ordinarily, therefore, no occasion would have arisen for him to inform the Court that he had actually made an application to the Board for the settlement of his debts or to contend that, by reason of such application, the decree had become incapable of execution. In this view of the case, the decisions, upon which the learned advocate relies, are of little avail to him.
In my view, there can be no doubt that the intention of the legislature was to provide that all proceedings for the execution of decrees for debts included in an application under s. 8 should be automatically stayed as soon as the application was filed before a Board and, for this purpose, it was provided under s. 34 of the Act that due notice with regard to such application should be given to the civil Court. The terms of this section are mandatory inasmuch as it says that—
the Board shall give notice thereof to such Court in the prescribed manner, and thereupon the suit or proceeding shall be stayed until the Board has either dismissed the application in respect of such debt or made an award thereon.
At the same time, in view of the language of s. 35 of the Act, it is impossible to hold that it could have been the intention of the legislature that a judgment-debtor should be deprived of a valuable right which had been conferred upon him by the Act by reason merely of some carelessness on the part of the Board, which might result in failure to issue the required notice.
It is contended on behalf of the respondent that, when once a rent-sale has been held, the debt must be regarded as satisfied and the matter will, therefore, no longer fall within the scope of the Bengal Agricultural Debtors Act and that a rent-sale, which has been held by the civil Court in the exercise of its jurisdiction, cannot be set aside under s. 47 of the Code of Civil Procedure, in a case such as that with which we are now dealing. I am not prepared to accept this contention. The question as to the validity of the execution-sale is clearly a matter which arises between the parties to the suit and relates to the execution of the decree and therefore falls within the purview of s. 47 of the Code of Civil Procedure. At the same time, when once an execution-sale has been held, there is a strong presumption to the effect that it was validly held by a Court which acted in the exercise of its ordinary jurisdiction. This being the case, the onus would lie heavily upon the applicant to show that the sale was in fact illegal on the ground that before the sale he had applied to the Debt Settlement Board for the settlement of his debts and had included in his application the debt in respect of which the execution proceedings had been taken, which resulted in the sale. If the applicant is able to discharge this onus, in my opinion, the Court would have no option but to set aside the sale even if it had received no notice under s. 34 of the Bengal Agricultural Act. The result would, therefore, be that, even if the debt had been extinguished by the sale, it would revive after the sale had been set aside and the provisions of the Bengal Agricultural Debtors Act would apply thereto.
The question whether or not the application under s. 8 of the Bengal Agricultural Debtors Act had actually been made by the appellant to the Debt Settlement Board and whether this application included the decree which he sought to execute in Execution Case No. of 1938 has not been considered by the Courts below. This being the case, the decisions of both the Courts must be set aside and this case is remanded to the trial Court for further consideration in the light of the above observations. The appeal is, accordingly, allowed,
Costs will abide the final result.
The hearing-fee in this Court is assessed at three gold mohurs.
This order will, however, not have the effect of disturbing the findings of the trial Court with regard to the maintainability of the application and the further finding to the effect that no notice under s. 34 of the Bengal Agricultural Debtors Act was actually issued by the Board.
Appeal allowed; case remanded.
G.K.D
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