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Appeal from Appellate Order No. 236 of 1946, decided on 14th June, 1951, against the Order of Prasad Chandra Banerjee, Subordinate judge, 2nd Court of Zilla Chittagong in Mis cellaneous Appeal No. 21 of 1946, dated the l.3th September, 1946, affirming the order of P. Roy, Munsif, 5th Court, Sadar, Chittagong, dated the 22nd December, 1945.

, Ss. 9 and 35 ---‑Mortgagee's suit pending against several co‑mortgagors‑One of mortgagors applying to Board for settlement of entire debt ‑Notice for stay not issued under S. 34‑Mortgaged property meanwhile sold in execution‑Sale, held, valid against all mortgagors except the one whose case was pending before Board.

Held, that the decree‑holder can proceed with the execu tion proceeding for realisation of the entire decretal amount against any one or all of the co‑debtors except the debtor whose case was pending before the Debt Settlement Board and the sale that took place in execution of that decree, is valid and binding against all except the debtor whose case was pend ing before the Debt Settlement Board.

Abu Taher Bazlul Rashid and others v. Chandra Mons' Shaha and others 43 C W N 318 ; Maulvi Mahiruddin Ahamed and others v. Harikanta Mandal and others 54 C W N (D R) 185 ref.

A. S. M. Mofakher for Appellant.

Rohini Binode Rakshit for Respondents.

--This appeal by the decree‑holder arises out of an objection under section 47 of the Code of Civil Procedure for setting aside a sale in execution of a mortgage decree on the ground that the sale which took place during the pendency of a Debt Settlement Board proceeding in respect of the said mortgage debt was in contravention of sections 33 and 35 of the Bengal Agricultural Debtors Act and as such void and without jurisdiction.

The facts of the case shortly stated are as follows : One Saheb Mia and his brother Taju Mia mortgaged the disputed property to one Abdul Majid in 1290 Maghi era corresponding to 1928 A. D. The present appellant pur chased the mortgagee's right on the 7th, December, 1939. Saheb Mia went to the debt Settlement Board in 1938 and his case was dismissed on the 24th April, 1939, and a review application for the restoration of the same was also dismissed on the 11^th September, 1940. The appellant mortgagee instituted a mortgage suit in 1941. Thereafter Saheb Mia and Basir one of the sons of Taju Mia filed another case in the local Debt Settlement Board and got the suit stayed. It is stated that Taju Mia, one of the mortgagors, died leaving a widow, Asaban Khatun, two daughters Tajmal Khatun and Almas Khatun, and two sons, Muhammad Basir and Muhammad Islam. The last mentioned Debt Settlement Board case was dismissed for default on the 5th July, 1942, and the stay order was withdrawn. Thereafter an application for review was filed on the 12th July, 1942. It was allowed on the 26th July, 1942, and the Debt Settlement Board case was restored so far as the applicant Basir was concerned but no notice under section 34 of the Bengal Agricultural Debtors Act was issued for stay after the restoration. The Debt Settlement Board settled the debt and passed an award on the 27th February, 1944. In the meantime the mortgage suit was decreed in preliminary form on the 20th August, 1942. That decree was made final on the 5th April, 1943. The decree‑holder put the decree into execution on the 9th July, 1943, and in the sale in execution of that decree held on the 29th December, 1943, the appellant decree‑holder purchased the mortgaged properties and the sale was confirm ed on the 4th February, 1944.

After that Saheb Mia alone filed an application under section 47 read with Order XXI, Rule 90 of the Code of Civil Procedure, being Miscellaneous Case No. 121 of 1944, for setting aside the sale on the ground of fraud and fraudulent suppression of sale processes and also on the ground that the sale during the pendency of the Debt Settlement Board case was a nullity, being contrary to the provisions of sections 33 and 35 of the Bengal Agricultural Debtors Act. That case was disallowed up to appeal. Then the present application was filed by Muhammad Basir, one of the sons of Taju Mia, being Miscellaneous Case No. 24 of 1945, for setting aside the sale on the ground of fraud and fraudulent suppression of the sale processes and also on the ground that the sale being in contravention of sections 33 and 35 of the Bengal Agricultural Debtors Act, is void illegal and without juris diction.

Both the Courts below allowed this application and set aside the sale on the finding that there was no fraud and fraudulent suppression of sale processes but the sale was void and without jurisdiction as it was held in contravention of section 35 of the Bengal Agricultural Debtors Act, which prohibits the execution of any decree for recovery of a debt included in an application under section 8 of the Act. Both the Courts below relied on the case reported in 49 C W N 578. Hence this second appeal.

Mr. A. S. M. Mofakher, the learned Advocate for the decree‑holder appellant, contended that the Miscellaneous Case NQ. 24 of 1945, started on the application of Muhammad Basir, was riot maintainable inasmuch as his application for settlement of the entire debt without impleading the other co-debtors was not an application contemplated by section 9 of the Bengal Agricultural Debtors Act and, therefore, the award passed on it was without jurisdiction and as such, section 35 of the Act was not applicable to the sale in dispute. His next argument was that the Debt Settlement Board award was illegal and without jurisdiction inas much as the Board had no jurisdiction to settle the entire amount of debt at the instance of some of the debtors. His third point was that in view of the fact that the sale‑set‑aside case at the instance of Saheb Mia having been dismissed on the self‑same ground as advanced by the present respondent applicant, the present application for setting aside the sale is not maintainable.

As to the last ground of the learned Advocate for the appellant, it has got no substance ; because dismissal of the sale‑set‑aside case at the instance of one of the judgment -debtors in which the present respondent was not a party, cannot bar the present application of the respondent for setting aside the sale, though the grounds incidentally are the same. As to his second point I think it is same in substance as his first point, namely, that in a joint debt, application by one of the debtors for settlement of the debt is not main tainable under section 9 of the Bengal Agricultural Debtors Act and the award passed on that application is without jurisdiction. As regards this point I think the learned Advocate is not correct. Section 9 is only an enabling section. It does not prohibit application by any one of the joint debtors for settlement of the debts. Subsection 2 of section 9 rather specifically provides that the Board shall settle the debts so far as the applicant is concerned. If such co‑debtors applies for settlement of the entire debt and if the Board on that application settle the entire debt, it is not valid so far as the other debtors who are not before the Board but it is valid so far as the liability of the applicant before the Board is concerned under subsection 2 of section 9 of the Act. Main question for consideration; therefore, is, whether section 35 of the Bengal Agricultural Debtors Act has got any application to the sale in dispute in which all the debtors or heirs of the debtors did not join the application before the Debt Settle ment Board.

The answer of the question depends upon the construc tion of section 35 of the Bengal Agricultural Debtors Act, which again depends upon the construction of section 9 of the said Act. The portion of section 35 material for our purpose runs thus

"Notwithstanding anything contained in any Act, no decree of a Civil Court. . . shall be executed (i) for the recovery of a debt included in an application under section 8 . . . .until (a) the application has been dis missed by the Board in respect of such debt ; or (b) an award in which such debt is included has ceased to subsist under subsection (5) of section 29."

Lower Courts read the section to mean that the entire decree in dispute could not be executed because of the prohibition of section 35 of the Act and therefore, held that the sale in execution of the mortgage‑decree during the pendency of the Debt Settlement Board Case being contrary to the provisions of section 35 of the Act, was a nullity.

I am unable to accept this view of the Courts below, because section 35 speaks of the execution of the decree for recovery of a debt included in an application under section 8 of the said Act. The application before Debt Settlement Board, as stated above, was at the instance of some of the heirs, namely, one of the sons of the mortgagors Taju Mia and that application must be one under section 9 of the Act which provides for an application by one of the co debtors for relief in respect of his liability in regard to such debt, i.e., a joint debt. In such an application the Board is to settle the liability of the applicant alone in respect of the joint debt and not the entire debt though the application may relate to the entire debt.

The material portion of subsection (2) of section 9 of the Bengal Agricultural Debtors Act reads as follows :‑

"If a debtor within the meaning of this Act is jointly liable with other persons for any debt such debtor may make an application under subsection (1) of section 8 for relief in respect of his liability in regard to such debt, and the Board ..may ..pass such order as it thinks fit under this Act regarding the debt so far as such applicant is concerned.

"Provided that an order of the Board under this subsec tion shall not affect the liability of any other person who is jointly with the debtor for the debt, but in no case shall the creditor to whom the debt is due be entitled to realise ..more than his dues from the persons jointly liable".

Subsection (2) of section 9 of the Bengal Agricultural Debtors Act clearly provides that in case of a joint debt the Board is competent to deal with that debt in respect of liability of the applicant in regard to such debt and the order of the Board shall not affect the liability of any other person jointly liable with the applicant debtor. The provisions of section 35 of the Act in case of one or more of co‑debtors in respect of joint dept must be read in the light of the persons jointly liable. If we consider the present execution proceeding and the sale held thereunder in the light of the observations made above, it becomes quite clear that the decree‑holder is entitled to proceed to realise his entire decretal dues from any one of the judgment‑debtors except the judgment‑debtor whose case was pending before the Debt Settlement Board. If the decree is executed against all the debtors and the sale took place against all the debtors including the debtor who was before the Debt Settlement Board, the sale, so far as the other judgment‑debtors who are not before the Debt Settlement Board, is certainly valid and binding but it is not valid and binding against the applicant before the Board being contrary to section 35 of the Bengal Agricultural Debtors Act and must be set aside. It is, therefore, not correct for the learned Advocate for the appellant to contend that the entire Debt Settlement Board proceeding and the award passed on it is without jurisdiction and section 35 of the Act has got no application in the case. Section 35 applies to the case so far as the applicant before the Board. It is also not correct for the Courts below to say that the entire sale in execution of the decree is null and void being contrary to section 35 of the Act.

Mr. Rakshit appearing on behalf of the judgment debtor applicant "respondent contends that the debt being a mort gage debt, it cannot be split up under the provisions of the Indian Contract Act and also under the mortgage bond and the liability of each of the co‑debtors extends to the whole of the debt, and, therefore, one of the co‑debtors cannot approach the Debt Settlement Board only for settlement of his portion of the debt, and that in fact some of the co -debtors approached the Board for settlement of the entire debt and the Board has settled the entire debt and passed an award in respect of the entire debt. Mr. Rakshit further contends that if the co‑debtors's liability extends to the whole of the debt and if the whole debt is settled by the Debt Settlement Board and the settled amount is paid to the mortgagor decree‑holder, the entire decree would be satisfied and there remains nothing for the decree‑holder to realise by sale of the mortgaged property in execution of the mortgage decree, even against those judgment‑debtors who are not before the Debt settlement Board.

I am unable to accept the contention of Mr. Rakshit and his reading of section 9, particularly by the words " his liability" in subsection (2) of section 9 of the Act. According to him the words "his liability" mean his liability to the extent of the whole debt, as a mortgage debt cannot be split up he is to pay the entire debt if he wants to redeem and he cannot redeem only his portion of the mortgaged property on pay ment of amount proportionate to his share and, therefore, his liability is the liability to the extent of the entire debt and the Board was quite competent to settle the entire debt at the instance of one of the co‑debtors and it cannot settle debt in respect of his imaginary share. If the reading of Mr. Rakshit is accepted, then the proviso to section 9 of the Act becomes redundant and an impossible position will arise. Subsection (2) of section 9 of the Act clearly provides :

" the Board may pass such order as it thinks fit under this Act regarding the debt so far as such applicant is concerned".

That clearly shows that section contemplates settle ment of debts to the extent of the liability of the applicant. Mr. Rakshit contends that those words can be read, so far as such applicant is concerned, to mean the debt for which the co‑debtor was liable, i.e., to the extent of the whole debt, as his liability stands. That this contention of Mr. Rakshit is wrong will further be apparent from the proviso which definitely lays down " an order of the Board under this subsection shall not affect the liability of any other person who is jointly liable with the debtor for the debt ..and that position has been further amplified by providing that " in no case shall be creditor to whom the debt is due be entitled to realise more than his dues from the persons jointly liable". Further, if Mr. Rakshit's reading of the section is accepted the position would be that by virtue of the award there would be no debt or there would be a small amount of the debt as settled by the Debt Settlement Board on the application of one of the co‑debtors but according to the proviso, the liability of the co‑debtors other than the debtor before the Board would not be affected by any order of the Board. The conflicting position that would arise, according to the reading of Mr. Rakshit, is that under the same section there would be no debt or a small amount of debt as settled by the Board so far as the entire debt in respect of all including those who were not before the Board but at the same time there would be a liability for the entire amount of debt under the proviso to subsection (2) of section 9 of the Act so far as the debtors who were not before the Board. That is a position impossible to have been intended by the Legislature. Therefore, I am of opinion, that the reading of Mr. Rakshit of section 9 of the Act is absolutely wrong. In support of the view I have taken above, reference may be made to the case of Abu Taher Bazlul Rashid and others v. Chandra Moni Shaha and others 43 C W N 318 where it was held that where some of the parties to a proceeding in a Court of law, who were jointly liable for a debt, applied to a Debt Settlement Boa;d for the settlement of their debt and the Board issued a notice under section 34 of the Act in the Court to stay the pro ceeding, the proceeding so far as they relate to the applicant before the Board only must be stayed and it should continue so far as the other parties are concerned. Reference may also be made to the case of Maulvi Mahiruddin Ahamed and others v. Harikanta Mandal and others 54 C W N (D R) 185 where it is held that proviso to section 9 (2) in the Bengal Agricultural Debtors Act make it clear that tile liability of the other persons jointly liable with applicant for settlement of debt and who are not before the Board is not affected in any way by the settlement of the debt of the applicant except to this extent that the decree‑holders are not entitled to realise more than their dues from them and consequently the debtors who are not parties before the Board cannot take advantage of the proceeding before the Board for obtaining relief under section 36 of the Bengal Money Lenders Act. The same result will follow if section 33 of the Act applies. Whether it applies or not, section 35 of the Act applies.

The result, therefore, is that the decree‑holder can proceed with the execution proceeding for realisation of the entire decretal amount against any one or all of the co‑debtor except the debtor whose case was pending before the Debt Settlement Board and the sale that took place in execution of that decree, is valid and binding against all except the debtor whose case was pending before the Debt Settlement Board.

I, therefore, allow the appeal and modify the judgments and orders of the Courts below to this exent that the sale so far as it relates to the judgment‑debtor whose case was pending before the Debt Settlement Board is set aside as void and without jurisdiction and the rest of the sale will stand valid and binding against other judgment‑debtors. "

In view of the facts, and circumstances of the case, I leave the parties to bear their own costs throught.

A. H. Order accordingly.

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