P L D 1952 Dacca 188 (PLP)

M. Fazlul Haq, for Deputy Registrar. ISPAHANI, J.‑--This Rule was issued calling upon the debtor opposite parties to show cause why the order of the learned District Judge, Jessore, under section 40A of the Bengal Agri cultural Debtors Act, dismissing a revision petition should not be set aside. The relevant facts are as follows ;‑ Opposite party Ezarud din Karikar and others filed a petition before the Debt Settle ment Board, Banda, against the petitioners for settlement of their debts. On the 12th September 1940, it was rejected as the Board found that the lands were recorded in the name of the creditors and there was no relationship of debtors and creditors between the parties. On the 23rd October 1940, a review petition was filed against that order and it was rejected on the 28th November 1940. Thereafter, Ezaruddin and others filed another application for the settlement of their debts men tioned in the previous application before the Special Board on the 5th August 1942, which was transferred to the Purulia Debt Settlement Board on the 22nd September 1942. The petitioners receiving notice appeared before the said Board and filed the order of the Banda Debt Settlement Board rejecting the first petition. On the 10th October 1943, the case was transferred to the Purulia Debt Settlement Board by an order of the Sub divisional Officer, Narail. On the 22nd July 1944, the opposite parties obtained an order ex parte under section 13 (2) of the Act against the petitioners from the aforesaid Board. The petitioners, thereafter, filed a review petition on the 7th October 1944, on the ground, inter alia, that they did not know of the proceedings of the second petition by the opposite parties and that there was no relationship of debtors and credi tors between the parties but it was rejected on the 4th Novem ber 1944, as being time‑barred. An appeal was preferred from that order and the order of the Board rejecting the review or petition was set aside on the 19th April 1945, and the case was sent back, and on the 3rd May 1946 the Board dismissed the second petition under section 17 (1) of the Act. On the 6th May 1946, a review petition was filed by the opposite parties, which was granted on the 29th May 1946 and the order passed under section 13 (2)‑of the Act on the 22nd July 1944, was confirmed. The petitioners, thereupon, filed a review petition, which was rejected by the Board, and on appeal the Sub divisional Officer, Narail, dismissed the same on the 16th May 1947. The petitioners then moved the District Judge in revision under section 40A and he rejected the said petition on the 18th March 1948, This Rule has been obtained against the said order. On behalf of the petitioners, Mr. K. M. Hasan has firstly urged that the learned District judge acted illegally and with material irregularity is not holding that the second petition filed by the opposite parties was not maintainable. It is con ceded by Mr. Chakravarty, appearing for some of the opposite parties, that the contents of both the petitioners relate to the same debt. Mr. K. M. Hasan has taken his stand on sub section (5) of section 8 of the Bengal Agricultural Debtors Act, which is as follows : "Notwithstanding anything contained in subsection (1), a Board may for good and sufficient reason entertain a further application in respect of any debt incurred before the date of a first application under subsection (1) or subsection (2) whether such application was made to it or to any other Board, except when such application under either of the said subsection has been dismissed under subsection (3) of section 13 or under clause (b) (ii) of subsection (1) or sub section (2) of section 17". Mr. Hasan's argument is that although the first application filed by the debtors was not dismissed under subsection (3) of sec tion 13, or under clause (b) (ii) of subsection (1) of sub section (2) of section 17 of the Act, it was decided on merits which precluded the filing of a second application in respect of the same debt and a Board may for good and sufficient reason entertain a further application in respect of any debt incurred before the date of the first application under subsection (1) or subsection (2) whether such application was made to it or to any other Board only when such debt is not included in the first application, through inadvertence of any other reason. From a perusal of the order sheet of the Banda Debt Settlement Board it would appear that the first application was not entertained by the Board because the lands in question were recorded in the name of the petitioners, which meant that there was no relationship of creditor and debtor between the parties. That being so, the second application for the same debt would not lie before the same Board or any other Board. The argu ment of Mr. Chakravarty, appearing for the opposite parties, that there was no decision on the merits of the first application cannot be accepted. When the decision on the first application was that it was not maintainable on the ground that there was no relationship of debtor and creditor between the parties that would be a final decision binding on the parties and a second application in respect of the same debt would not be maintainable. That is not all. A second application in terms of sub section (5) of section 8 of the Act is maintainable only when any debt incurred before the date of the first application under subsection (1) or subsection (2) is omitted in the first application through inadvertence or any other reason acceptable to the Board. That is not so in the present case. This question ha been the subject of the many decisions and it is sufficient to make reference to Bibhuti Bhusan Roy v. Bhola Nath Sinha Roy 49 C W 151, wherein it was held that section 8 (5) of the Bengal Agricultural Debtors Act only contemplates a second applica tion in respect of a debt or debts which has been omitted from the first application by inadvertence or otherwise. The Legislature when enacting subsection (5) of section 8 of the Act intended that it should apply only to those cases where a further application in respect of a debt or debts which had not been included in the first application through inadvert ence or any other cogent reason acceptable to the Board is filed before the same Board or any other Board and not to those cases where the debt or debts in the first application were the subject of a final decision by a Board and are the subject matter of a further application as well. Thus the Board at Purulia had no jurisdiction to entertain the second application. The next argument advanced is that the learned Judge acted illegally and with material irregularity in not holding that no notice was served on the petitioners in allowing review applica tion filed by the opposite parties on the 6th May 1946 That petition was filed against the order dismissing the second appli cation on the 3rd May 1946. Section 44 of the Act deals with the power of the Board to review its order. The proviso to that section provides that no order shall be varied or reversed unless an opportunity has been given to the person interested to appear and be heard in support of such order. It is conceded by the opposite parties that no notice of the review application was served on the petitioners as provided for by the proviso to section 44 of the Act. This being the position, the Board has not complied with the mandatory provision of the Act. For this reason also the order passed by the Board cannot upheld. The last point urged is that the learned Judge has acted illegally and with material irregularity in not holding that the petition by the opposite parties before the Debt Settlement Board was not maintainable inasmuch as the opposite parties did not admit any debt in their second application. In the body of the petition the opposite parties did not admit any debt mentioned that the debt had been satisfied with usufruct of the land. In the column on the reverse side provided for debts one rupee is shown to be due to the creditors. On a scrutiny of the same it is clear that the figure has been written at a subsequent date. In the body of the petition also a similar correction has been made. It seems to me that these interpolations have been made at a subsequent date to make out a case that at least one rupee was due to the creditors. In Haji Maharam Ali v. Munsarl Ali 2 D L R 30 =P L R 1 Dacca 121, it was held that the existence of debt is sine qua non for assumption of jurisdiction by a Debt Settlement Board. In the present case initially when no debt was admitted by the opposite parties, the Board had no jurisdiction to entertain the second application. The three grounds urged succeed. The Rule is made abso lute and the order of the learned District Judge, dated the 18th March 1948, is set aside and he is directed to inform the Board in question that the second application filed by the opposite parties is not maintainable. The petitioners are entitled to their costs throughout. A. H. Rule made absolute.