P L D 1960 Dacca 110 (PLP)

"If any question arises in connection with 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." It is seen that the scheme of the Act is to give relief to agricultural debtors in respect of certain debts, and in order to afford relief to such class of debtors, the Board has been clothed with certain powers. Section 8, authorises a debtor and his creditor to file appli cation for settlement of debts. In order to see whether the applicant is a debtor or not or whether a liability is a debt or not or, in other words, whether the applicant fulfils all the pre‑requisite conditions, the Board by virtue of section 20, has been given power to investi gate the matter. If it is found that the applicant is a debtor, his application is maintainable ; if not, his application would be thrown out. Similarly, when a liability is a debt, the Board shall determine the debt; if not, his application would be rejected. Now, the question before us is whether the decision of the Board that the transaction in question is not a debt is binding on the Civil Court. Mr. khandkar urges that this decision is not binding on the Civil Court, the reasons being : ' (1) Whether a transaction is a debt or not is not within the jurisdiction of the Board though it has got jurisdiction to decide whether a person is a debtor or not or a liability is a debt or not. (2) Board rejected the application under section 8 in limine, and, as such, it did not exercise jurisdiction. (3) That the rejection of the application has not taken away the right of the debtor under the Transfer of Property Act. (4) That the scheme of the Act is to give relief to a debtor, and, as such, when relief is granted, the jurisdiction of Civil Court is ousted, but, when no relief is granted by the Board, the jurisdiction of the Civil Court is not ousted as the order of rejection does not come under the provisions of the Act pro hibiting the Civil Court from taking cognizance : and (5) That the application was rejected under section 17 of the Act, but the reason for the order does not come under any one of the heads enumerated therein.

5. Mr. Pakrasi, the learned Advocate for the respondents, contends that any decision under section 20 of the Act is binding on the Civil Court, and, in support of his contention, he relies on the case of Yakub Ali and another v. Arabjan Bibi and others (P L R 2 Dacca 593), where it has been held that the Board has absolute jurisdiction to decide whether a transaction is a debt or not, and whether an applicant is a debtor or not. The fact of the case is that the defendant approached the Board for settlement of two debts evidenced by two pattas and ekrarnamas. The Board allowed the application in. respect of one transaction holding that it was a debt, and dismissed the application in respect of another. There after, the plaintiff‑creditor instituted a suit for declaration that the decision of the Board was ultra vires and without jurisdiction as there was no debt, and for declaration of their kol raiyati right under the defendant on the basis of the two pattas. From the aforesaid facts, it appears that the question before their Lordships was whether the Civil Court has jurisdiction over a matter decided by the Board that the transaction was a debt ; so it is not an authority on the question now in dispute.

6. Section 9 (2) bars the Civil Court from interfering with the order of the Board about a portion of a joint debt on an application by one of the joint debtors in relation to his liability in respect to such debt, and subsection (3) of the said section bars interference with the order relating to rent, but clause (b) of sub section (3) authorises the landlord to file a suit in case the debtor fails to comply with the said terms. Section 13 (2) provides that, when an amount of debt is declared in writing by the Board under that subsection, that order shall not be questioned in any Civil Court. Section 18 (4) debars the Civil Court from questioning the amount of principal of debt due from a debtor, and of the arrears of interest due thereon. Section 33 debars suits in relation to debts included in an application under sections 8 and 37‑A or in a statement under section 13 (1), proceedings in con nection with which are pending before a Board or an Appellate Officer or a District Judge or an Additional District Judge or achy debt for which an amount is payable under an award, except in accordance with the provisions of subsection (5) of section

29. Section 34 provides for stay of further proceedings of a suit in a Civil Court in relation to debts pending for decision under section 8, etc. Section 35 debars execution of a decree of a Civil Court or certificate under the Public Demands Recovery Act, 1913, relating to a debt under certain circumstances. Section 36 declares any decree of a Civil Court passed in regard to a debt after the date of an application under section 8 of the Act a' nullity. From all the aforesaid sections, it appears that the jurisdiction of the Civil Court has been ousted in relation to debts included in an application under sections 8 and 37‑A, or in a statement under section 13 (1), proceedings in connection with which are pending before a Board or an Appellate Officer or a District Judge or an Additional District Judge or any debt or an amount payable under an award. All the sections refer to debtor and debt, and not to a person who is not a debtor, and a transaction not a debt.

7. No specific provision has been made in the Act prohibiting the Civil Court to take cognizance of a matter which is not found to be a debt by the Board. Section 17 does not specifically or by implications debar the Civil Court from taking cognizance of a matter, application relating to which may be dismissed by the Board. Section 21, does not bar a suit though the creditor may not accept an offer by the debtor in respect of a debt, but authorises the creditor to sue for the debt in a Civil Court under certain penalties and disability, and to execute the decree not before a certain date. Section 33, debars suits during the pendency of proceedings or an application under section 8 up to the District Judge, and when an award has been passed. It does not debar any other proceedings that may be taken recourse to under the Act unless that comes in conflict with provisions specifically made therein. Section 34, authorises the Board, an Appellate Officer and the District Judge or an Additional District Judge to stay proceedings before a Civil Court relating to such debt until the Board has dismissed the application in respect of such debt or made an award thereon or until an Appellate Officer or a District Judge or an Additional District Judge has disposed of the matter, and has further provided that the suit or proceeding shall abate in respect of debts included in, the award or decided not to be existent. This section clearly sows that the Civil Court has jurisdiction over a transaction found by the Board not a debt to decide whether that transaction is a debt or not, because suits or proceedings relating to a debt only abate so far, in relation to such debt, as included in an award.

8. Section 35, does not debar but authorises the Civil Court to execute its decree for a debt included in an application under section 8 or in a statement under section 13(1) when the application has been dismissed. The provision of section 35 (1) (a), has got a very important bearing on this point.

9. From all these provisions of the Act, I am of opinion that the Civil Court has jurisdiction to entertain a suit relating to a transaction or debt when an application ‑under section 8, in relation to such debt is dismissed by the Board. This opinion of mine is also supported by the decision in the case of Yakub Ali and another v. Arabjan Bibi and others. In the aforesaid case, there were two transactions ; the Board found one transaction a debt and another not. The debtor preferred an appeal against that portion of the order affecting him. The District Judge held that the suit was not maintainable as one transaction was found by the Board a debt, and, as there was an appeal pending against the order dis missing the application under section 8, in connection with the other transaction. Their Lordships have confirmed the judgment of the District Judge and held at page 619 : "As regards the second transaction, the suit was obviously barred at the time it was filed, as the matter was then in appeal under the special Act."

10. Now, coming to the merits of the case, it is not disputed that the document, Exh. 1, is a mortgage deed. The case of the defendants in the present suit as well as before the Debt Settlement Board is that the document, though apparently a mortgage deed, is really a kabala. It has also been found by the Debt Settlement Board that the document is apparently a mortgage deed, and it has given liberty to the defendants to have a kabala executed from the plaintiff in a competent Court. The original mortgage deed has been marked Exh. A. It was executed by the said three brothers in favour of persons stated beforehand on the 28th May 1936, for a sum of Rs.

700. Interest was fixed at Rs. 18 per year per hundred rupees. There is nothing in the document showing that it is a sale, but all the stipulations in the document con clusively prove that it is a mortgage deed.

11. In the circumstances, I hold that the suit is maintainable. The appeal is, therefore, allowed with costs. The judgment and decrees of the Courts below are set aside and the plaintiff's suit for redemption is decreed with costs all through.

12. Leave to appeal under clause 15 of the Letters Patent prayed for is refused. K. B. A./A. H. Appeal allowed.