Ram Partap Mall vs Hardas Singh Gurdial Singh

Gurnam Singh, J.—This, appeal is directed against the judgment the learned Single Judge, dated, 14-7-1953.

Ram ''Partap Plaintiff-Appellant institute Ease it against Hardas Singh for realisation of Rs. 20613/- a charge on immovable property situate in The suit''was decreed by the District Judge, Patiala on 19th Magh 2006/23-1-1950. The lecree was given in the following terms:

The judgment-debtor shall deposit the de cretal amount by 20th May 1950, failing which the decree-holder shall have a right to realise the entire amount through the sale of the mortgaged property.

The judgment-debtor failed to deposit the decretal amount by due date. The decree-holder, therefore, took out execution on 10-6-1950, praying for realisation of the amount by sale of the mortgaged property. The judgment-debtor claiming himself to be a displaced person presented an application for'' stay of the execution proceeding u/s 6, Displaced Persons (Legal Proceedings) Act, 1949.

As the Act was not in force in this State the application was dismissed. After the Act came into force, the judgment-debtor presented a similar application. The executing Court after finding that the application was by a displaced person rejected the tame on the ground that a mortgage decree or a decree for sale of the mortgaged property could nol? be regarded as a decree for payment of money.

The execution proceedings were still pending and the house was being sold when the Act was repealed and substituted by the Displaced Persons (Debts Adjustment) Act, LXX of 1951. This Act came into force in the Slate of Delhi on 10-12-1951 and in this State on 20-12-1951. The judgment-debtor submitted an application for ad judgment of his debt u/s 5 of the Act to the Tribunal at Delhi.

In this application he prayed for stay of the executioXproceedings. His prayer was; turned down Joy the Tribunal and he was directed to approach the executing Court. Consequently he sub-Red an application in the Court of the Dis-Fict Judge, Patiala, praying that the proceedings, gs required by Section 15 of the Act, be stayed and the cord be transferred to the Tribunal at Delhi. Trie learned District Judge dismissed his application the ground that a charge incurred on the security of property situate in India was not immune from attachment and say in execution proceedings.

Being dissatisfied with the findings of the District Judge, the judgment-debtor appealed to the High Court. My learned brother Chopra J. accepted the appeal and stayed the proceedings, vide his order dated 14-7-1953. He directed the executing Court to act as provided by Section 15, Displaced Persons (Debts Adjustment) Act, 1951. The present appeal is directed against the judgment of the Single Judge.

It may be mentioned here that during the pendency of the proceedings out of which the present appeal has arisen another identical application u/s 5 of the Act, was made by the judgment-debtor before the Tribunal at Patiala, While arguing the appeal before the learn ed Single Judge the parties agreed that this application be taken into consideration in order to avoid further litigation and delay in the decision of the case.

The findings of my learned brother are: (1) that the Respondent judgment-debtor is a displaced person; and that the pecuniary liability incurred by him on the security of immovable property situate in India was a ''debt'' for the purposes of the Act. After arriving at these findings my learned brother" directed the executing" Court to act in accordance with the provisions of Section 15, Displaced Persons (Debts Adjustment) Act.

Counsel for the parties agree that where, an application u/s 5 of the Act is made the Tribunal it is the Tribunal alone, that has decide the question the debt and status of he debtor As soon as the application has been made, the matter, is, taken out of the hands of he c)Mi Court because of the provisions contained Section 15 of the Act. This position appears to be correct. It appears from the judgment of my earned brother that, Section 9 was not brought to his notice. In fact the. Position now adopted by .the counsel for the .parties was never placed before for the Tribunal to decide whether those Condi-my learned brother Chopra J. Section 9, Sub-section ions exist or not, because the very existence of is a dispute as to whether the appellations the Tribunal, its very authority depends upon

If there is a dispute as to whether the applicant is displaced person or not or as to the existence or the amount of the debt due to any creditor or, the assets of any displaced debtor, the Tribunal shall decide the matter after taking such evidence as may be adduced by all the parties concerned; and'' shall pass such decree in relation thereto as it .think", fit." Section 15; of the Act reads as follows:

Where ''a" displaced debtor has made an application to the Tribunal u/s 5 or under Sub-section (2), of Section 11, the following consequences shall ensue, namely:

(a) all ''proceedings pending at the date of the said ''application in any civil court in respect of any debt to which the displaced debtor is subject (except proceedings by way of appeal or review, or raven against decrees or orders passed against there 48Pilaced:;debtor) shall be stayed, and the .records it of air such proceedings other than those relating to the.[appeals, reviews, or revisions as aforesaid shall be transferred to the Tribunal And conciliated;....

Section 9 referred to above makes'' it abundantly clear that after an application u/s 5 of the Act is made by a displaced person the Tribunal alone is competent to adjudicate on the question of debt and status of the person who makes the application Such a matter is taken out of the hands'' of the''" Civil Court. If a suit is pending, u/s 15 (a) it must be stayed.

If no suit is pending then u/s 15 (c); a fresh suit or proceeding is barred against a displaced person in spite of the debt, mentioned by him in the schedule. The view of the matter, I have, taken is supported by authorities of Boom bay, and the Punjab High Courts. In - ''Baburao K. Pal v. Oalsukh M. Francolin AIR 1955 Boom. 89 (A) it was held:....

The Displaced Persons (Debts Adjustment) Act is a. self-contained Code with regard to adjustment of debts by displaced persons u/s 9. Where an "Application, u/s 5 has been made to, the Tribunal," it is the Tribunal that has to decide, the question of the debt and the status Off the lector. "As soon as the application has been made,;(the matter is taken out of the hands, of-the CPC because the provision for stay u/s 15. comes into operation. (Intention of Legislature in enacting Section 15 indicated). Therefore, if a suit is pairing at the time of the application u/s 5 there is an ouster of jurisdiction of the civil Court.

Provisions in the law which oust the jurisdiction of a Civil Court must be strictly construed and any civil Court will be loath to come to the conclusion that its. Jurisdiction in a civil matter has been taken away. But when the Court is dealing with an Act passed for special reasons, applying to special persons setting up a special Tribunal, it is not difficult to appreciate, the object which Parliament had in mind in placing certain matters solely within the jurisdiction of the special Tribunal set up and preventing the ttvil Courts from dealing with those matters. In of strict construction has no place.

In setting up a Tribunal a Legislature may follow one of two methods. It may provide that. a Tribunal shall have jurisdiction provided certain conditions exist and the conditions would be-jurisdictional conditions going to the very jurisdiction of the Tribunal. It would not then be the Tribunal, its very authority depends upon those conditions existing.

Or the Legislature may set up a Tribunal and; confer upon that Tribunal jurisdiction to decide-all questions which arise in respect of a ljarticular subject-matter for which the Tribunal has been, set up. In such a case it is not possible to contend that it is left to the Civil Court to decide whether certain conditions exists so that the Tribunal can exercise its jurisdiction."

A similar view of the matter was taken by a. majority of the Full Bench of the Punjab High Court reported as Parkash Textile Mills Ltd. Vs. Mani Lal and Others, (Kapur J. dissenting) wherein it was held by Forshaw and Bushman Narain, J J:

The status of a displaced debtor who has applied u/s 5 or u/s 11 (2) of the Displaced persons (Debts Adjustment) Act, LXX of 1951, can be determined only by the Tribunal and cannot be determined by a civil court in which proceedings relating to that debt are-pending.

With respect I agree with the observations made in the two authorities mentioned above. Chagla. C. J. in his very able and clear judgment has given detailed reasons in support of his findings. It is unnecessary for me to go into all those-reasons. It is sufficient to say that I adopt them in support of the view I have taken. No arguments were addressed to us in support of the opposite view adopted by Kapur J., in his dissenting judgment. Rather the counsel for the parties have agreed that it is the province of the Tribunal alone to go into the question of the debt and the status of the debtor.

As already mentioned, with respect, I prefer to follow the view of the'' majority in the Full Bench case mentioned above. The case before the Full Bench was similar to the one before us. We are, therefore, of the same view that the Tribunal alone is competent to adjudicate upon the nature of the debt and the status of the debtor. We therefore find, though on entirely different considerations, that the appeal before us has no force and must be dismissed.

In the result the appeal is dismissed and1 the order of the learned Single Judge staying'' the proceedings and directing the executing Court to proceed in accordance with Section 15 of the Act is maintained. In the Peculiar circumstances of this case, we leave the parties to bear their own costs

Mehar Singh, J.

I agree.