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Appeal from Appellate Decree No. 807 of 1954, decided on 27th January 1958. .
‑Substance and real intention of parties as evidenced in document should be considered.
In interpreting document, form should not be taken into consideration but the substance and real, intention of the parties as evidenced in the document.
Ramdhandas Jhajharia v. Ramkisandas Dalmia and others 51 C W N 202 (P C) rel.
Existence of debt is sine qua non for clothing Board with jurisdiction.
The Debt Settlement Board, under the provisions in the various sections of the Bengal Agricultural Dabtors Act, has been only clothed with jurisdiction to investigate those transactions which in its opinion are debts. It has no jurisdiction to entertain an application under section 8 of the Act when there is no existence of debt inasmuch as the existence of debt is sine qua non for clothing the Board with jurisdiction. Further more, when the Board decides that there is no debt, it loses its jurisdiction over the application and any order passed in this behalf is not binding on the Civil Courts though it may be binding before the Board so far as the parties are concerned.
Decision given under S. 20 refusing to entertain application under S. 8‑Does not oust jurisdiction of Civil Court.
Section 20 of the Bengal Agricultural Debtors Act only enables the Board to come to a decision whether the Board has jurisdiction and whether it will assume jurisdiction or not and, if the Board is satisfied that the applicant is a debtor and that a certain transaction is a liability, in that case it may assume jurisdiction and determine the existence or amount of any debt. If the decision be in favour of the applicant under section 8 of the Act, the Civil Court has no jurisdiction to question that though that decision may be right or wrong. But, if on the other hand, the Board finds that the applicant is not a debtor or a particular transaction or liability is not a debt within the meaning of the Bengal Agricultural Debtors Act though that decision may be right or wrong the Civil Court's jurisdiction will not be ousted because the Civil Court's jurisdiction‑ has not been either ex pressly or impliedly taken away by the Act in such circumstances.
Chhunu Bhuiya v. Ismail Bhuiya and others P L D 1952 Dacca 108 ; Fuljan Bibi and others v. Debendra Nath Kar and another 3 D L R 38 ; Yakub Ali and another v. Arabjan Bibi and others P L D 1954 Dacca 113 ; Abdul Gafur Sheik and others v. Nakul Chandra Pramanik P L R 6 Dacca 52 ; Abdul Jalil (Mistri) v: Golam Rahman P L R 6 Dacca 650 ; Rai Brij Raj Krishna and another v. Messrs S. K. Shaw and Brothers A I R 1951 S C 115 ; Ebrahim Aboobakar and another v. Custodian General of Evacuee Property A I R 1952 S C 319 ; The Queen v. The Commissioner for Special Purposes of the Income‑Tax (1833) 21 Q B D 313 (319) and Colonial Bank of Australasia v. William 1874 L R 5 P C 417 (443) ref.
B. C. Das with K. M. Saha for Appellant. R. R. Guha with Moinul Huq for Respondent.
The case of the plaintiff‑appellant is as follows : He mortgaged the suit‑land worth about fourteen to fifteen hundred rupees by way of anomalous mortgage to the defendant for a loan of Rs. 500 on the 2nd Baisakh , 1342 B.. S., for a period up to Chait, 1356 B. S., corresponding to middle of April, 1950, on the stipulation that if the mortgage money be pain to the mortgagee by the mortgagor by any Chait within 1356 B. S., the land will be returned to the mortgagor, and if the mortgage money be not paid within the stipulated date, the land would remain in possession of the mortgagee the kot‑kabala having the effect of a saf kabala. The plaintiff put the mortgagee in possession. Subsequently, the plaintiff approached the Debt Settlement Board and filed an application under section 8 of the Bengal Agricultural Debtors Act for determination of his debt in respect of the debt in question and also some other debts and a case (No. 32/14 of 1937/41) was started. On the 10th of March, 1939, the Board passed the following order
"On the evidence and the admission of the debtor, this chukti kabala is found to be in reality a saf kabala and, there fore, being a matter not for the Board to determine, the claim of the creditor is refused".
vide Exhibit C. Subsequently on the 29th of March, 1942, that is, about 3 years thereafter, the Board passed the following order :‑
"It is found on evidence that this kabala is not a kot but a saf kabala and being, therefore, not a loan, it is refused".
From the aforesaid two orders, it appears that the Board rejected the application under section 8 of the Bengal Agricultural Debtors Act of the plaintiff on the finding that the transaction was not a debt but it was an absolute sale and the Board had no jurisdiction to entertain such an application. After this order, the plaintiff filed the present suit under section 26‑G of the Bengal Tenancy Act for redemption of the kot mortgage being extinguished by use and occupation of the suit‑land by the mortgagee for more than 15 years.
2. The suit was contested by the defendant. His case in short is as follows : At first there was a talk between the plaintiff and the defendant for sale of the disputed land but, while the document was going to be executed, the scribe pointed out that if a kabala be written, then in that case the defendant has to pay Rs. 100 as transfer fee to the landlord and to avoid that and also as the plaintiff promised that he would not demand the property back, instead of a kabala, this chukti meadi kabala. was executed. And, as such, in view of the contract by the plaintiff, the plaintiff is estopped from claiming any right on the chukti meadi kabala. The allegation of the plaintiff that the suit land is worth more than fourteen or fifteen hundred is not true. The consideration stated in the kabala is the proper value of the suit‑land at the time the kabala was executed. It has been further contended by the defendant that in view of the order of the Debt Settlement Board dismissing the application in relation to this item, on the finding that it was not a debt but a sale, the Civil Court has no jurisdiction to question that finding of the Debt Settlement Board.
3. The trial Court decreed the suit holding that the Civil Court had jurisdiction to entertain the present suit in presence of the order passed by the Board under section 20 of the Bengal Agricultural Debtors Act, as it did not take away the jurisdic tion of the Civil Court; that the transaction in question was a mortgage by conditional sale which was apparent from the document itself and also from the statement in the written statement as well as from deposition of defence witnesses Nos. I and 2, and that the kabala was executed to defraud the landlords' fee and, as fraud had been perpetrated, the defendant was not entitled to claim the land on the basis of the kabala. On appeal by the defendant, the lower Appellate Court set aside the judg ment and decree of the trial Court and dismissed the suit holding that the Civil Court had no jurisdiction to entertain the present suit and that the transaction in question was not a mortgage but an absolute sale. Hence the present appeal.
4. Mr. B. C. Das, the learned Advocate for the appellant, contends that the lower Appellate Court erred in law in inter preting the document and in holding that the transaction created by this document in question was not a mortgage by conditional sale and, in support of his contention, he has relied on some statements made in the document, Exhibit A, dated the 2nd Baisakh,'1342 B. S., which are the followings :‑
"Meadi chukti kabala.
I sell to you through a meadi chukti kabala for a fifteen‑year period, from the month of Baisakh of the current year 1342 to 30th Chaitra, 1356. You having taken possession of the aforesaid land and on paying Sadar rent continue to be in enjoyment and possession thereof. If I repay (parishodh) your consideration money within 30 Chaitra, 1356, you will without objection deliver the land sold to my possession and you will not be entitled to raise any plea of title and possession. If I am unable to repay (parishodh) the consideration money within the aforesaid date, the meadi chukti kabala, after the stipulated period, will be converted into a saf kabala. Having got your name mutated in the relevant zamindary sherista in place of my name and on payment of Sadar rent you will continue down to your sons and grandsons in extreme facility to possess and enjoy the same by exercising the rights of gift and sale".
and urges that the recitals in the document as well as the written statement show that it is not a kabala for out and out sale but it is a meadi chukti kabala, that is, nothing but a mortgage by conditional sale. Furthermore, it appears from the recital that by the transfer in 1342 B. S., no absolute right, title and interest vested in the transferee but it remained with the transferor in view of the fact that there is no recital in the document that on this transfer the vendor will lie divested from his right, title and interest in the suit‑land and the same will vest in the trans feree. Though there has been a stipulation for payment of rent by the transferee, yet he has not been given the right to have his name mutated or any right to sell the property in his own way nor any right of inheritance has been given to the heirs of the transferee. The stipulation "the land will be handed over to the transferee" goes to show that it was nothing but a mortgage. If there had been a transfer, the provision would have been for reconveyance if the money would be repaid within the time stipulated. The word parishodh in the last paragraph is also significant inasmuch as the word parishodh means repayment of debt and not purchase money or money for re‑conveyance. The last significant stipulation in the document is that if the transferor fails to pay the money within the stipulated time, in that case the meadi kot kabala will be converted into a kabala and there after the transferee shall have the right to mutate his name and enjoy the properties right down to his heirs, having the right of transfer by mortgage and sale and right of inheritance, but this right of transfer or ‑mutation of his name was not given to the transferee by the transferor before the expiry of the period of the stipulated time.
4‑A. Mr. R. R. Guha, the learned Advocate for the res pondent, contends that the phrases. "It is necessary to sell the property. The maximum price of the land sold having been fixed at Rs. 500, you will be entitled to enjoy and possess the same on payment of Sadar rent" in the document go to show that this document is not a mortgage by conditional sale. As to the right of mutation, as I have already stated before; this, right was not given to the transferee just in 1342 B. S. but this right was given to the transferee on the expiry of the period of the specified time and on failure of the transferor to pay the money and, if the money be paid within the time, the transferee was bound to hand over the land conveyed to the transferor. The other phrases in the document, though they show that some terms have been used showing the transfer to be an absolute sale, but, in interpreting the document, form should not be taken into con sideration but the substance and real intention of the parties as evidenced in the document, for which reliance may be made on the case of Ramdhandas Jhajharia v. Ramkisandas Dalmia an others (51 CWN 202 (PC)).
5. From the reading of the document, it appears to me that there was not an out and out sale but a mortgage, and, as such, I find that the contention of the learned Advocate for the appellant is a sound one.
6. Next comes the question whether the Civil Court has jurisdiction to entertain the suit. The learned Advocate for the appellant contends that the Civil Court has jurisdiction in view of the fact that the Debt Settlement Board refused to entertain the application and determine the debt and that the decision given under section 20 of the B. A. D. Act refusing to entertain the application cannot take away the jurisdiction of the Civil Court which is vested in it by law.
7. Mr. Guha, the learned Advocate for the respondent in support of the judgment of the lower Appellate Court, contends that the Civil Court will have no jurisdiction to entertain a suit in relation to a transaction which has been found by the Board not to be a loan in view of the provision of section 20 of the B. A. D. Act and, in support of his contention, he has relied on the case of Chhunu Bhuiya alias Chuni Bhuiya v. Ismail Bhuiya and others on the death of Hadi Bhuiya (P L R 1 Dacca 190: P L D 1952 Dacca 108), the case of Fuljan Bibi and others v. Debendra Nath Kar and another (3 DLR 38), the case of Yakub Ali and another v. Arabjan Bibi and others (P L R 2 Dacca 593 : P L D 1954 Dacca 113), the case of Abdul Gafur Sheik and others v. Nakul Chandra Pramanik (P L R 6 Dacca 52), the case of Abdul Jalil (Mistri) v. Golam Rahman (P L R 6 Dacca 650), the case of Rai Brij Raj Krishna and another v. Messrs S. K. Shaw and Brothers (AIR 1951 SC115), the case of Ebrahim Aboobakar and another v. Custodian General of Evacuee Property (AIR 1952 S C 319), and the case of The Queen v. The Commissioner for Special Purposes of the Income Tax ((1833) 21 Q B D 313 (319)).
8. Before I proceed with the aforesaid cases, I may point out here that in none of the cases reported in P L R., this aspect of the matter which is now before me for consideration was considered, as, in all those cases the debtor got relief while in the present one, as the transaction in the Board's opinion was not a debt, the debtor has filed the present suit under section 26‑G of the Bengal Tenancy Act.
9. Now, let me consider the above cases one by one. In the case of Chhunu Bhuiya alias Chuni Bhuiya and another v. Ismail Bhuiya and others, Ibrahim, J., held
"In my opinion, the liability under section 20 means the liability alleged by the applicant and it is within the exclusive jurisdiction of the Board to decide whether the liability alleged is real or fictitious or exists or does not exist, for, without determining that question, the Board cannot decide whether it has jurisdiction to entertain the application. If in deciding the question whether the liability alleged by the debtor exists or not, it becomes necessary to consider whether the transac tion upon which the liability is asserted creates a debt or not, the Board alone is competent to decide that. Section 2, clause 10 of the Bengal Agricultural Debtors Act provides in clear terms that loan includes any transaction which is in the opinion of a Board in substance a loan'. It should be absolutely clear from these plain words that if any question arises in a proceeding before the Board as to whether a transac tion is a loan or not the Board has exclusive jurisdiction to decide it. If, therefore, a Debt Settlement Board comes to a finding on the application for settlement of debt that the liability alleged is a debt, then that decision cannot be challenged in a Civil Court on the ground that the Board acted without jurisdiction because it had no power to decide whether the transaction created a liability or not".
From the above quotation it appears that jurisdiction of the Civil Court is ousted only when the Board decides that the liability is a debt. His Lordship did not decide whether the Civil Court will have jurisdiction when the Board refused to entertain the application on the ground that the liability is not a debt. Moreover, at page 192 of the report, the following observation has been made
"Under section 9 of the Civil Procedure Code, the Courts are vested with Jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred".
In the case of Fuljan Bibi and others v. Debendra Nath Kar and another, Akbar, J., held that the Civil Court has no jurisdiction. In this case also, the creditor after his defeat before the Board filed the suit in a Civil Court and the present question before me was not called upon to be decided.
10. In the case of Yakub Ali and another v. Arabjan Bibi and others; it has been held
"Therefore whatever powers the Board has under that Act can be exercised by it alone and in view of our conclusion that it has jurisdiction to decide if there is a liability at all, it alone can determine that question and not the Civil Court. The Civil Court can interfere only if the allegation is that fraud was practised on the Board or it was not lawfully constituted or it had no territorial or fiscal jurisdiction or such other questions which affect its jurisdiction arise, but regarding decision in matters within its jurisdiction, a suit does not seem to lie".
11. In the case of Abdul Gafur Sheik and others v. Nakul Chandra Pramanik and others, Choudhury, J., held
"Under section 20 of the Bengal Agricultural Debtors Act it is within the exclusive jurisdiction of the Debt Settlement Board to decide whether a transaction creates a liability or not and whether a liability is a debt or not,and if the Board decides a usufructuary mortgage to be a debt, Civil Court has got no jurisdiction to interfere with that decision".
In the case of Abdul Jalil (Mistri) v. Golam Rahman, Zaman, J., held that Civil Court has no jurisdiction to re‑open an award' passed by the Debt Settlement Board.
12. So, from all these cases it appears that their Lordships were not called upon to decide the point now before me for decision, but only held that the Civil Court will have no juris diction when the D. S. Board decides that a particular transaction is a debt within the meaning of the B. A. D. Act.
13. Then come the other cases relied on by Mr. Guha. In the case of The Queen v. The Commissioners for Special Purposes of the Income‑Tax, it has been held
"When an inferior Court or tribunal or body, which has to exercise the power of deciding facts, is first established by an Act of Parliament, the Legislature has to consider what powers it will give that tribunal or body. It may in effect say that, if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do such things, but not other wise. There 'it is not for them conclusive to decide whether that state of facts exists, and, if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction. But there is another state of things which may exist. The Legislature may entrust the tribunal or body with a jurisdic tion which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction; on finding that it does exist, to proceed further or do something, more. When the Legislature are establishing such a tribunal or body with limited jurisdiction, they also have to consider whatever jurisdiction they give them, whether there shall be any appeal from their decision, for, otherwise, there will be none. In the second of the two cases I have mentioned it is an erroneous application of the formula to say that the tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the Legislature gave them jurisdiction to determine all the facts, including the existence of the preliminary facts on which the further exercise of their juris diction depends ; and if they were given jurisdiction so to decide, without any appeal being given, there is no appeal from such exercise of their jurisdiction".
In the case of Rai Brij Raj Krishna and another v. Messrs S. K. Shaw and Brothers, it has been held : .
"It seems to us that the view taken by the High Court is not correct. Section 11 begins with the words Notwithstanding anything contained in any agreement or law to the contrary', and hence any attempt to import the provisions relating to the law of transfer of property for the interpretation of the section would seem to be out of place. Section 11 is a self‑contained section and it is wholly unnecessary to go outside the Act for determining whether a tenant is liable to be evicted or not, and under what conditions he can be evicted. It clearly provides that a tenant is not liable to be evicted except on certain conditions, and one of the conditions laid down for the eviction of a month to month tenant is non‑payment of rent.
Subsection (3) (b) of section 11 provides that the Controller shall, if he is satisfied that the claim of the landlord is bona fide, make an order directing the tenant to put the landlord in possession of the building', and if he is not so satisfied he shall make an order rejecting the application. Section 16 empowers the Controller to make enquiries and inspections and to summon and enforce the attendance of witnesses and compel the production of documents, in the same manner as is pro vided in the C. P. C. Section 18 provides that any person aggrieved by an order passed by the Controller may, within 15 days of the receipt of such order by him, prefer an appeal to the Commissioner of the Division, and it also prescribes the procedure for the hearing of the appeal. Subsection (3) of this section states that the decision of the Commissioner, and subject only to such decision, an order of the Controller shall be final, and shall not be liable to be questioned in any Court of law whether in a suit or other proceeding by way of appeal or revision.
The Act thus sets up a complete machinery for the investigation of those matters upon which the jurisdiction of the Controller to order eviction of a tenant depends and it expressly makes his order final and subject only to the decision of the Commissioner. The Act empowers the Controller alone to decide whether or not there is non‑payment of rent, and his decision on that question is essential before an order can be passed by him under S. 11. Such being the provisions of the Act we have to see as to whether it is at all possible to question the decision of the Controller on a matter which the Act clearly empowers him to decide. The law on this subject has been very lucidly stated by Lord Esher. M. R, in the Queen v. Commissioner for Special Purposes of the Income Tax in these words
"When an inferior Court, or tribunal or body, which has to exercise the power of deciding facts, is first established by an Act of Parliament: the Legislature has to consider what powers it will give that tribunal or body. It may in effect say that, if certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things, but not otherwise. There it is not for them conclusively to decide whether that state of facts exist and if they exercise the jurisdiction without its existence, what they do may be questioned and it will be held that they have acted without jurisdiction. But there is another state of things which may exist. The Legislature may entrust the tribunal or body with a jurisdiction, which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction ; on finding that it does exist, to proceed further or do some thing more. When the Legislature are establishing such a tribunal or body with limited jurisdiction they give them, whether there shall be any appeal from their decision ; for, otherwise, there will be none. In the second of the two cases I have mentioned it is an erroneous application of the formula to say that the tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the Legis lature gave them jurisdiction to determine all the facts, including the existence of the preliminary facts on which the further exercise of their jurisdiction depends ; if they were given jurisdiction so to decide, without any appeal being given, there is no appeal from such exercise of their jurisdiction".
14. On the same lines are the following observations of Sir James Colville in Colonial Bank of Australasia v. William (1874 L R 5 P C 417 (443)) which is a case dealing with the principles on which a writ of certiorari may be issued
"Accordingly, the authorities . . . . . establish that an adjudication by a Judge having jurisdiction over the subject- matter is, if no defects appear on the face of it, to be taken as .conclusive of the facts stated therein ; and that the Court of Queen's Bench will not on certiorari quash such an adjudication on the ground that any such fact, however essential, has been erroneously found.
There can be no doubt that the present case falls within the second category mentioned by Lord Esher, because here the Act has entrusted the Controller with a jurisdiction, which includes the jurisdiction, to determine whether there is non‑payment of rent or not, as well as the jurisdiction, on finding that there is non- payment of rent, to order eviction of a tenant. Therefore, even if the Controller may be assumed to have wrongly decided the question of non‑payment of rent, which by no means is clear, his order cannot be questioned in a Civil Court".
In the case of Ebrahim Aboobakar and another v. Custodian General of Evacuee Property New Delhi it has been held
"The remaining three questions canvassed before us unless they are of such a nature as would make the decision of the respondent dated the 13th May, 1950, a nullity, cannot be the subject‑matter of a writ of certiorari ; it is plain that such a writ cannot be granted to quash the decision of an inferior Court within its jurisdiction on the ground that the decision is wrong. Indeed, it must be shown before such a writ is issued that the authority which passed the order acted without jurisdiction or in excess of it or in violation of the principles of natural justice. Want of jurisdiction may arise from the nature of the subject‑matter, so that the inferior Court might not have authority to enter on the inquiry or upon some part of it. It may also arise‑from the absence of some essential preliminary or upon the existence of some particular facts collateral to the actual matter which the Court has to try and which are conditions precedent to the assumption of jurisdiction by it. But once it is held that the Court has jurisdiction but, while exercising it, it made a mistake, the wronged party can only take the course prescribed by law for setting matters right inasmuch as a Court has jurisdiction to decide rightly as well as wrongly".
15. From all the aforesaid authorities it appears to me that once an inferior Court or tribunal or body is vested with power to decide its jurisdiction and thereafter it adjudicates upon the matter, the Civil Court shall have no jurisdiction to question the decision unless there was fraud practised on it or it had no jurisdiction, fiscal or territorial, or such other questions which may affect jurisdiction. Having this principle in view, I am to decide whether the Civil Court's jurisdiction has been ousted in the circumstances of the case before me.
16. If we turn to the preamble of the B. A. D. Act, we find the following
"Whereas it is expedient to provide for the indebtedness of agricultural debtors and to amend the law governing the relations between agricultural debtors and their creditors".
This preamble goes to show that the Act is meant for relief of the agricultural debtors and for amending the law governing the relations between agricultural debtors and their creditors.
17. By subsection (8) of section 2 debt' has been defined as follows
"debt" includes all liabilities (incurred prior to the first day of January 1940), of a debtor in cash or in kind, secured or unsecured, whether payable under a decree or order of a Civil Court or otherwise, and whether payable presently or in future, but does not include the following
(i) any amount the liability for the payment of which is only contingent ;
(ii) any rent not due at the time when a Board determines the amount of debt under section 18 ;
(iii) any share of the produce of land payable on account of land cultivated under the system known as adhi, barga or bhag;
Debtor' has been defined in subsection (9) of the same Act as follows :
"debtor" means a debtor whose primary means of livelihood is agriculture and who‑
(a) is a raiyat or any under‑raiyat, or
(b) cultivates land himself or by members of his family or by hired labourers or by adhiars, bargadars or bhagdars ;
and includes a group of persons who join in making an application under the provisions of subsection (1) or section 9".
Loan' has been defined in subsection (10) of the same section as follows
Loan' means a loan whether of money or in kind, and includes any transaction which is, in the opinion of a Board, in substance a loan".
Board' has been defined in subsection (5) of section 2 as follows
" Board means a Debt Settlement Board established under subsection (1) of section 3, and includes an officer or the Collector authorised under the proviso to section 4" ;
Section 7 defines the powers of the Board. Section 8 provides for procedure for filing an application by a debtor for settlement of his debt as well as by the creditor. Section 11 indicates what particulars of debts are to be included in the application under section 8. Section 13 empowers the Board to invite further statements of debts while issuing notice under subsection (2) of section 12. Section 15 gives the Board the power to attempt for any amicable settlement of debt and section 18 gives the Board power to decide whether the debt exists and determine its amount, if there is any doubt or dispute as to the existence or amount of any debt. Section 20 provides
"If any question arises in connection with the proceedings before a Board under this Act whether a person is a debtor or not (or whether a liability is a debt or not) the Board shall decide the matter".
From the provisions in the aforesaid sections, it appears to me that the Debt Settlement Board has been only clothed with jurisdiction to investigate those transactions which in its opinion are debts and has no jurisdiction to entertain an application under section 8 when there is no existence of debt inasmuch as the existence of debt is sine qua non for clothing the Board with x jurisdiction as held in the case reported in 5 D L R 1 corres ponding to P L R 2 Dacca 593. Furthermore, when the Board decides that there is no debt, it loses its jurisdiction over the application and any order passed in this behalf is not binding on the Civil Courts though it may be binding before the Board, so far as the parties are concerned.
18. This view of mine is also supported by the provisions of the Act in some other sections. The provision of subsection (4) of section 18 takes away jurisdiction of the Civil Court
"When the Board has determined under subsection (2) the amounts of the principal of a debt due from a debtor and of the arrears of interest due thereon, the decision of the Board in this respect shall not be questioned in any Civil Court or in any manner other than that provided in this Act".
From section 21, it appears that when a creditor does not accept an offer made by the debtor which in the opinion of the Board is fair and such as the creditor ought reasonably to accept, the Board, if it is so empowered under section 7, instead of passing any other order which it is competent to pass, may grant to the debtor a certificate in the prescribed form in respect of the debt to which the offer relates". On grant of a certificate, the Civil Court has power to entertain a suit in respect to that debt subject to this that the Court shall not award any costs in the suit or any interest on the debt after the date of such certificate.
19. In my opinion, the provisions in section 21 conclusively go to show that though a Board may hold that a particular debt is a debt and thereafter grant a certificate to the debtor, the jurisdiction of the Civil Court is not ousted thereby as the Civil Court can entertain a suit in respect of the debt decided to be a debt by the Board. So, mere holding of a transaction to be a debt does not automatically ,debar the Civil Court from enter taining a suit in respect of such debt.
20. Thereafter comes the provision of section 33 whereby it has been provided that "no Civil or Revenue Court shall entertain a suit, application or proceeding against the debtor in respect of
(a) any debt included in an application under section 8 or section 37‑A or in a statement under subsection (1) of section 13, proceedings in connection with which are pending before a Board or an Appellate Officer or a District Judge or an Additional District Judge ; or
(b) any debt for which any amount is payable under an award except in accordance with the provisions of subsection (5) of section 29".
21. This clearly goes to show that the Civil Court's jurisdiction is ousted only when the application or any proceeding) is pending before the Board or when it has been incorporated in an award.
22. Section 34 of the Bengal Agricultural Debtors Act provides for stay and abatement of suits and proceedings and for a notice to be issued for the said purpose and when the notice has been issued 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 or until the Appellate Officer has disposed of such appeal or the District Judge or the Additional District Judge has disposed of such applica tion for revision, and if the Board or the Appellate Officer or District Judge or Additional District Judge includes any part of such debt in clause (d) of subsection (1) of section 25 in the award or decides that the debt does not exist the suit or pro ceeding shall abate so far as it relates to such debt.
23. The aforesaid provisions in my opinion go to show that though the subject‑matter of the suit or proceeding may be included in an application, yet the suit or proceeding in relation to that portion that is not included in clause (d) of subsection (1) of section 25 in the award or is not decided that it does not exist, does not abate and the suit or proceeding shall proceed after the determination by the Board or the Appellate Officer or the District Judge.
24. Section 35 of the Act operates as a bar to execution of certain decrees and certificates by providing that "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 section 8 or in a statement under subsection (1) of section 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 subsection (5) of section 29 ;"
These provisions, go to show that no decree or certificate for a debt included in an application under section 8 or included in a statement under subsection (1) of section 13, can be executed so long as the application has not been dismissed, or the award in which such debt has been included has not ceased to subsist under subsection (5) of section 29. But once the application under section 8 is dismissed or the award in which such debt was included ceases to subsist the Civil Court or the Certificate Officer has power to proceed with the execution of the decree or the certificate proceeding.
25. Lastly, comes section 36 by which certain decree or portion of decree which is
(a) inconsistent with any order passed by a Board under subsection (2) of section 13 regarding any debt or with any determination by the Board under section 18 of the principal and the arrears of interest of any debt included in a subsisting award ; or
(b) it relates to a debt the documents in respect of which being in the possession or under the control of the creditor have not been produced before the Board and marked by the Board as required by section 14 unless it is proved to the satisfaction of the Civil Court that there were sufficient reasons for non‑production of the documents before the Board",
has been made a nullity.
26. In my opinion, all the aforesaid provisions bar the jurisdiction of the Civil Court in relation to debts which have been included in an application under section 8 or included in a statement under section 13 (1) or included in an award. Even in that case also, the Civil Court will assume jurisdiction when the application has been dismissed or when the debt is not incorpo rated in an award.
27. Coming next to the provision of section 20 of the Act on which Mr. Guha relied so much, my opinion is that this section only enables the Board to come to decision whether the Board has jurisdiction and whether it will assume jurisdiction or not and, if the Board is satisfied that the‑applicant is a debtor and that a certain transaction is a liability, in that case it may assume jurisdiction and determine the existence or amount of any debt. If the decision of the Board be in favour of the applicant under section 8 of the Act, the Civil Court has no jurisdiction to question c that though that decision may be right or wrong. But, if on the other hand, the Board finds that the applicant is not a debtor or a particular transaction or liability is not a debt within the meaning of the Bengal Agricultural Debtors Act though that determination may be right or wrong the 'Civil Court's jurisdiction will not be ousted because the Civil Court's jurisdiction has not been either expressly or impliedly taken away by the Bengal Agricultural Debtors Act in such circumstances.
28. In the result, the appeal is allowed with costs. The judgment and decree of the lower Appellate Court are set aside and those of the trial Court are restored.
29. Leave under clause 15 of the Letters Patent prayed for is granted.
K. B. A.
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