Ram Ballav Marwari vs Rameswarlal Genoriwalla

S.R. Das Gupta, J.—This is an appeal against an order passed by the learned Subordinate Judge, Bankura, dismissing the applications of the judgment-debtor made u/s 37A of the Bengal Agricultural Debtors Act, 1955, read with Sections 151 and 152 of the Code of Civil Procedure. The matter arises in this way:

The Respondent before us and one Brijlal Genoriwalla obtained a decree for Rs. 83,552-15-2 against the Appellant and the other judgment-debtors. Thereafter the Respondent as a result of an amicable partition got the entire decree to himself. He then started two execution proceedings, one for the realisation of a decretal amount and the other for costs, being Title Execution Cases Nos. 261 and 262 of 1937. In the said execution proceedings two-thirds share of the Appellants in the properties in question were sold and purchased by the decree-holder. On February 7, 1939 the decree-holder duly obtained possession of the lands sold in the said execution cases. Thereafter the Bengal Agricultural Debtors (Amendment) Act, 1942, having come into force some of the judgment-debtors including the present Appellants applied to the Debt Settlement Board u/s 37A of the said Act and the debt was settled and an award was made by the said Board.

On January 19, 1948, two applications were made u/s 37A(8) of the Bengal Agricultural Debtors Act for restoration of possession by setting aside the award. The said applications gave rise to miscellaneous cases Nos. 46 and 47 of 1948. On May 29, 1948, an order was made in each of the said two cases for possession and the judgment-debtors obtained symbolical possession. On August 13, 1948, the judgment-debtors filed two applications in the two execution cases for actual possession. At the hearing of the said applications it became known that in the earlier applications no order was made for setting aside the sale. The decree-holders, who were served with notices of the said applications, filed petitions of objection u/s 47 and the said objections were marked Miscellaneous Cases Nos. 13 and 14 of 1949. On May 31, 1949 the said objections were allowed and the judgment-debtors'' application, dated August 13, 1948 was rejected. Thereupon, on July 5, 1949 the judgment-debtors filed two applications u/s 37A(8) read with Sections 151 and 152 of the CPC for a fresh order for possession after setting aside the sale, or in the alternative; for amendment of the order, dated May 29, 1948 by incorporating therein an order setting aside the sale. These two applications gave rise to Miscellaneous Cases Nos. 72 and 73 of 1949. The learned Subordinate Judge dismissed both the applications. It is against the order passed in Miscellaneous Case No. 72 of 1949 that the present appeal has been filed.

The learned Subordinate Judge in dismissing the said Miscellaneous Cases held that the Debt Settlement Board bad no jurisdiction to entertain the application made to it u/s 37A. He held that the amount of the debt mentioned by the debtors in their application u/s 37A having exceeded Rs. 25,000, the Board could not entertain the said application in view of the provisions of Sub-rule (2) of Rule 146. He further held that the civil court had jurisdiction to examine into cases where a statutory tribunal act ultra vires. On this view of the matter he held that the award in question was ultra vires and void and dismissed the said cases.

Mr. Banerjee appearing on behalf of the Appellants contended before us that the learned Judge was wrong in coming to the said conclusion. He urged that Section 37A is a complete code by itself and the only conditions which hare to be fulfilled before a Board can entertain an application under the said section are those mentioned in Sub-section (1) thereof, subject, of course, to the limitations imposed by Sub-section (3) of the said section, and if those conditions are fulfilled, then the Board is bound to entertain an application whatever may be the amount of the debt. He urged further that although because of Clause (a) of Sub-section (1) of Section 37A, it is necessary for the applicant to show that the applicant at the date of the sale was a debtor, but they said clause does not put any limit to the amount of such debt. Consequently Mr. Banerjee argued that all that is required to be shown is that the applicant was a debtor at the date of the sale irrespective of the amount of such debt and the Board would be bound to entertain the application of such a debtor, provided, of course, the other conditions laid down in Section 37A are fulfilled.

This argument of Mr. Banerjee proceeds on the assumption that Section 37A is independent of the rest of the provisions of the Act and the rules made thereunder. I am unable to accept that proposition. In my opinion Section 37A has to be read along with the other sections of the Act. For the present purpose it has to be read along with Section 55 of the Act and the rules made thereunder. Section 55 gives power to the Local Government to make rules inter alia fixing the maximum amount of debt which can be dealt with under the provisions of the Act. By virtue of the said power given in the said section Rules 144 to 146 have been made. Rule 144 provides that the maximum amount of the sum total of all debts due from a debtor which can be dealt with under the provisions of the Act shall be Rs. 5,000 and if the said debt exceeds Rs, 5,000 and does not exceed Rs. 25,000, the Board may with the previous sanction of the Collector deal with the same. Rule 145 provides that if there is any doubt or dispute as to the amount of any debt, the Board shall in accordance with the principles of Section 18, Rule 50 or Sub-section (7) of Section 37A and Rules 77(d) to 77(f), as the case may be and as far as the same may be applicable, informally decide for the purpose of Rule 144 the amount of such debt. Rule 146 reads as follows:

(1) If the sum total of all debts mentioned by the debtor in his application under Sub-section (8) of Section 37A or statement of debt under Sub-section (1) of Section 13 exceeds Rs, 5,000 but does not exceed Rs. 25,000 the Board shall forward the application to the Collector for sanction under the proviso to Rule 144 before passing any order upon it under Sub-section (2) of Section 13 or under Sub-section (8) or Sub-section (7) of Section 37A.

(2) If the amount so mentioned by the debtor exceeds Rs. 25,000 this Board shall not entertain the application.

It should be noted that Rule 146 has been expressly made applicable to an application made u/s 37A. In my position an application u/s 37A is governed by and is subject to the limitation imposed by the said rules. Section 37A, after its incorporation, became a part of the Act. It is not a provision wholly independent of the other sections of the Act as suggested by Mr. Banerjee. It seems to us that Section 37A came to be incorporated in the Act in order to give relief to a debtor whose property has already been sold in execution of a decree. Before Section 37A came to be incorporated in the Act there was no such provision in the same. The only application which a debtor could make then was u/s 8 of the Act and there was no provision in the Act for giving any relief to a debtor whose property had already been sold. In order to provide for such a contingency that Section 37A seems to have been incorporated. But it is not correct to say that the said section is not subject to the other provisions of the Act and in particular, to Section 55 of the rules made thereunder. If the view which Mr. Banerjee urged before us is accepted, then there would be strange results. For example, a debtor whose debt exceeds Rs. 25,000 and who could not otherwise take advantage of and get relief under the provisions of the Bengal Agricultural Debtors Act would be so entitled the moment his property is sold in execution of a decree passed against him in respect of the said debt even though the amount of such a debt since the passing of the said decree has considerably swollen. Such a result could never have been in the contemplation of the legislature.

Mr. Banerjee in support of his contention relied on the case of Kalipada Mondal v. Bimal Chandra Singha ILR (1949) Cal. 123. That case in my opinion is no authority for the proposition contended for by Mr. Banerjee. In that case the question which had to be decided was whether or not if nothing was found due on calculation u/s 37A(4), that Board became functus officio and no order for restoration of possession could be made. The question which is now before us namely, whether or not the Board can deal with an application u/s 37A of the Act even though the amount of debt exceeds Rs. 25,000 did not arise for their Lordships''s consideration in that case. I have, therefore, come to the conclusion that the view taken by the lower court on this point is correct.

Mr. Banerjee then contended before us that the "debt" for the purpose of Section 37A of the Act must be held to be the "debt" as defined in Section 37A.

In order to appreciate this part of Mr. Banerjee''s argument it would be necessary to set out the material provisions of Section 37A which are as follows:

37A. (1) When any immovable property of any person has been sold after the twelfth day of August, 1935, in execution of a decree of a Civil Court or a certificate under the Bengal Public Demands Recovery Act, 1913, relating to a debt, other than a certificate for the recovery of any amount payable under an award, such person or his heir, executor or administrator may, notwithstandng anything contained in this Act or in any other law for the time being in force or in any agreement, apply for relief under this section, if the following conditions are fulfilled, namely:

(a) If, on the date of the sale, such person was a debtor....

Sub-section (4):

If the Board decides that an application made under Sub-section (2) fulfills the conditions specified in Sub-section (1) and can be entertained by it, and if after an opportunity has been allowed in the manner prescribed, the applicant, the decree-holder and the landlord of the applicant in respect of the property sold in the case where the decree-holder is not such landlord, or where the Board finds that the property sold is subject to any bona file mortgage executed by the decree-holder before the twentieth day of December, 1939, the applicant, the decree-holder, such landlord and such mortgagee do not effect an amicable settlement of the debt within such period as the Board may allow, the Board shall, in such manner as may be prescribed, estimate the average annual gross receipts deemed to have been derivable from the property sold during the period beginning on the first day of January, 1934, and ending on the thirty-first day-of December 1938.

The material portion of Sub-section (5) reads as follows:

After making the estimate referred to in Sub-section. (4), the Board shall are an award directing the applicant-

(a) to pay annually in cash to the decree-holder one-half of the value of such average annual gross receipts until the debt is extinguished or until twenty years have expired from the date of the award, whichever is earlier.

Sub-section (6) provides that the Board shall in the case where any improvement has been effected bona-fide by the decree-holder mentioned therein allow compensation to the decree-holder and before an award shall determine the amount of such compensation.

Sub-section (7) reads as follows:

For the purposes of an award made under Sub-section (5)-

(a) the debt shall be deemed to be-

(i) the amount of the decree or certificate in execution of which the property was sold together with all costs of such execution including the cost of delivery of possession of the property to the decree-holder calculated in the manner prescribed, and

(ii) in addition, the compensation, if any, allowed under Sub-section (6) and in the case of a decree or certificate for arrears or rent, the amount of the rent, if any, payable to the decree-holder in respect of the property between the date of the institution of the suit or the filing of the certificate and the date on which the decree-holder secured possession of the property, after deducting there from, in respect of each year during which the decree-holder remained in possession of the property, an amount equal to half the average annual gross receipts estimated under Sub-section (4), and a proportionate amount in respect of any portion of any such year ; and

(b) in the case to which the proviso to Sub-section (5) applies, the debt shall include so much of the principal of the mortgage referred to in that proviso as is payable under Clause (i) of that proviso to the mortgagee:

and after such an award has been made, the applicant shall be deemed to be a debtor.

Mr. Banerjee contended that the provisions of Sub-section (7) of Section 37A makes it clear that the debt for the purpose of Section 37A must be the amount mentioned in the said Sub-section, that is the amount of the decree or certificate and the compensation payable under Sub-section (6) after deducting therefrom in respect of each year during which the decree-holder remained in possession of the property an amount equal to half the average annual gross receipts estimated under Sub-section (4). Mr. Banerjee contended that in an application u/s 37A the question as to whether or not the amount of debt exceeded twenty-five thousand rupees has to be determined on the basis of Sub-section (7). The result of Mr. Banerjee''s contention is that the Board in the first instance shall entertain an application made u/s 37A whatever may be the amount of the debt for which the property in question was sold and proceed to determine the amount of the debt in accordance with the provisions of Sub-section (7) of Section 37A. If upon such determination the Board finds that the amount exceeds twenty-five thousand rupees, the Board shall leave the matter there and will not proceed with it any further, because in that case the Board will have no jurisdiction to deal with the matter. To put it shortly, Mr. Banerjee''s contention is that the definition of "debt" as given in Sub-section (2) will not apply to Section 37A and the "debt" for the purpose of the said section would be the amount mentioned in Sub-section (7) and Mr. Banerjee in support of that contention relied upon the case of Rambandhu Misra and Others Vs. Brahmananda Laik and Another, .

I am unable to accept this contention of Mr. Banerjee. In the first place, it should be noted that the starting words of Sub-section (7) are "for the purposes of an award made under Sub-section (5) the "bebt shall be deemed to be". The words used are not "for the "purposes of the Act" or "for the purposes of Sub-section (1) of Section 37A". The true import of the provisions of the said Sub-section, in my opinion, is that in making an award under Sub-section (5) the Board has to determine the amount of debt payable under the said Sub-section in the manner laid down in Sub-section (7). This would be clear not only from the words used in Sub-section (7) to which I have already referred but also on reading Sub-section (7) along with the other provisions of Section 37A particularly Sub-section (5) thereof. Sub-section (5) provides that the applicant has to pay the, decree-holder at a certain rate until the "debt" is extinguished. Sub-section (5) does not say how the amount of such debt is to be arrived at. That will be found in Sub-section (7); in other words, the debt which is payable under an award made under Sub-section (5) shall be the amount mentioned in Sub-section (7) I cannot accept the view that a "debt" for the purpose of an application u/s 37A is different from a "debt" as defined in Section 2 of the Act. It seems to me that Sub-section (1) of Section 37A enables a person to make an application under the said section if amongst others his property had been sold in execution of a decree relating to a debt and if on the date of such sale such person was a debtor. It should be remembered that after the property of the judgment-debtor had been sold in execution of the decree and the decree is satisfied, there is strictly speaking no relationship of debtor and creditor subsisting between the decree-holder and the judgment-debtor; it is because of that that Sub-section (1) says that an application can be made if the property was sold in execution of a decree "relating to a debt" and "if on the date of the sale such person "was a debtor". It is after an award is made under Sub-section (5) that the relationship of debtor and creditor is re-established and the amount payable under an award made under Sub-section (5) becomes a debt. This would appear more clearly from the concluding portion of Sub-section (7) where it says "after such an award "has been made the applicant shall be deemed to be a debtor". In my opinion there can be little doubt that the effect of Sub-section (7) read with the other provisions of the Act is that the amount payable under an award under Sub-section (5) is to be determined in the manner indicated in Sub-section (7). In my opinion "the debt for "the purpose of Section 37A" must be the amount of the decree in execution of which the property was sold.

This view of mine finds support in a decision of a Division Bench of this Court in the case of Khetra Mohan Saha v. Panchu Gopal Pal Civil Revision Case No. 741 of 1948, unreported. Lahiri J., in delivering judgment in that case, observed as follows:

Looking at Section 37A of the Bengal Agricultural Debtors Act it seems to us that the amount of debt within the meaning of that section must be determined by reference to the decree or certificate in execution of which the property is sold. In our view this is the plain meaning of Sub-section (1) of that section. If we look at Sub-section (7) we find that there the provision is that for the purposes of an award the debt shall be deemed to be the amount of the decree or the certificate in execution of which the property was sold plus compensation, if any, allowed under Sub section (6). * * * The combined effect of all these Sub-sections in our opinion is that the Board cannot look beyond the decree of the certificate for the purpose of determining the debt. This conclusion is also borne out by Rule 145 which provides that if there is any doubt or dispute as to the amount of any debt, the Board shall in accordance with the principle of Sub-section (7) of Section 37A informally decide the amount of such debt.

With this view Das, J. also concurred.

That is also the view taken by Harris C.J., in the very case, Rambandhu Misra and Others Vs. Brahmananda Laik and Another, cited by Mr. Banerjee, although Mr. Banerjee seems to think that it supports his contention. In that case the amount of the decree was thirty-one thousand rupees although the debtor in his application u/s 37 to the Board mentioned the amount to be Rs. 10,000. The Board found that the amount exceeded twenty-five thousand rupees and therefore it held that it bad no jurisdiction to deal with the matter. It was contended on behalf of the judgment-debtor before this Court that the definition of debt in Section 2 should be operative and the amount over twenty-five thousand rupees being barred becomes under the said section irrecoverable in law. Harries, C.J., in dealing with that contention held that the duty of the Board in connection with jurisdiction while dealing with applications under the Act is dealt with in Rules 144, 145 and 146 and after setting out the provisions of the said rules observed that where there is a dispute as to the amount of debt as stated by the applicant the Board may informally decide the matter and when considering the matter it must consider in the light of Rule 146. Harries, C.J. then observed, and if is upon those observations that Mr. Banerjee relied, as follows:

Mr. Sen''s argument is that "debt " must mean in Section 37A, Sub-section (5) what it,-means in other portions of the Act. In other words, the definition of the word-" debt " in Section 2 must be applied to the word " debt " in Section 37A, Sub-section (5), I have pointed out, however, that in the definition section it is expressly stated that the definition given will not apply if there is anything repugnant in the subject or context, and I think it is clear that the word " debt " in Sub-section (5) of Section 37A cannot mean what is stated in the definition of that word in Section 2. In short, there is another definition of the word " debt " in Sub-section (7) of Section 37A of the Act.

It is clear that Chief Justice Harries was referring to the word "debt" as used in Sub-section (5) and Sub-section (7) of Section 37A. His Lordship did not hold that for the purposes of Section 37A or Sub-section (1) thereof the "debt" is the amount as defined in Sub-section (7) of the said section. Harries, C.J. was only repelling Mr. Sen''s contention that the "debt" must mean in Sub-section (5) of Sestion 37A what it meant in other portions of the Act. This would appear more clearly from the subsequent observations of his Lordship which are as follows:

The debt is the amount of the decree, in execution of which the property was sold together with certain other charges. The amount of the decree in this case was over Rs. 31,000 and that is the amount of the debt for the purposes of Sub-section (5) of Section 37A. The amount being over Rs, 25,000 it is clear that the Board had no jurisdiction to deal with the application by reason of Sub-rule (3) of Rule 146.

I think that this decision instead of supporting Mr. Banerjee''s present contention, negatives the same.

As for the other decisions relied upon by Mr. Banerjee the same in,my opinion have no bearing to the present question. In the premises this contention of Mr. Banerjee must fail.

I shall now deal with the last contention of Mr. Banerjee. He contended that in any event the lower court should have grafted his clients'' prayer for the amendment of the order passed on August 13, 1948. For this purpose Mr. Banerjee relied on the finding of the learned Judge where he held that in each of the Miscellaneous Cases Nos. 46 and 47 of 1948 no order for setting aside the auction sales was passed through accidental slip before passing the order for restoration of possession. Therefore, Mr. Banerjee contended that the lower court should have in any event amended the said order of August 13, 1948. I am unable to accept this contention. If, in fact, an order had been passed in the said Miscellaneous Cases setting aside the sales but through accidental slip the. same was not recorded, the position Night have-been different. But it appears from the said observations of the learned Judge that no such order was passed although the omission to pass such an order was due to accidental slip. That being the position, the question before the learned Judge was whether or not he should now pass such an order. It was, therefore, not a question of amending the order already passed but of passing a new order for setting aside the sale. If, as I have held, the Board had no jurisdiction to deal with this matter, the amount of the debt being over twenty-five thousand rupees, then the award passed by the Board was without jurisdiction and, therefore, a nullity. In such circumstances the learned Judge could not pass the order as asked for. In my opinion, therefore, this contention of Mr. Banerjee must also fail.

Before concluding my judgment I should mention than towards the end of his argument it was faintly argued by Mr. Banerjee that under Sub-section (8) of Section 37A a Civil Court is bound to set aside a sale as soon as a debtor presents a copy of an award, made under Sub-section (5) to it; in other words, it was contended that the court cannot go behind the award and determine the question as to whether or not the Board had jurisdiction to deal with the matter. I am wholly unable to accept this contention. A. civil court in my opinion when called upon to give effect to a... award, can always go into the question as to whether or not the Board had jurisdiction to deal with the matter and if it finds that it had no such jurisdiction, then the court will refuse to pass an order giving effect to the award. The award in such a case is nullity and cannot be enforced in a civil court. This is also the view taken in the case of Jnanendra Narayan Singh v. Momena Khatoon Second Appeals Nos. 498 and 499 of 1949, decided by P.N. Mukherjee on February 2, 1954, unreported. Therefore, I am clearly of opinion that this contention of Mr. Banerjee must also fail.

In the result, therefore, this appeal fails on all the grounds urged and it is dismissed with costs-the hearing fee being assessed at three gold mohurs.

Mallick, J.

I agree.