P L D 1952 Dacca 68 (PLP)

AMIN AHMED J.

‑This appeal by the judgment‑debtors arises out of a mortgage execution case No. 8 of 1944. It is directed against the decision of the Subordinate Judge of Noakhali in Miscellaneous Appeal No. 84 of 1947 affirming that of the Munsif, 3rd Court, Noakhali, in Miscellaneous Case No. 230 of 1946. The facts of the case may be briefly stated as follows :‑On the 16th September, 1936, one Chandra Kumar Majumdar obtained a preliminary decree in a mortgage suit against one Sm. Nonaibashi Devi, a mortgagor, and against the present appel lants who were the subsequent morrgagees. On the 16th March, 1937, a final decree was passed. An execution case, namely, execution case No. 63 of 1940 was started by the decree‑holder and in execution of the decree the sale of the mortgaged pro perty was fixed for the 22nd November, 1940, but the judgment debtor, that is the mortgagor Nonaibashi Devi, made an application before the Debt Settlement Board being case No. 782 of 1938 and obtained a notice under section 33 of the Agricultural Debtors Act on the 12th December, 1938, but subsequently that notice was cancelled on the 15th July, 1940. But on the date fixed for the sale of the property, that is on the 22nd November, 1940, a notice under section 34 was served by the Debt Settlement Board and the sale was stayed. On the 11th August, 1940, the present appellants, that is to say, the puisne mortgagees filed another case before the Alladinagar Debt Settlement Board and their case was transferred to Noannai Debt Settlement Board, and was registered as Miscel laneous Case No. 29/2 of 1941 and on the 24th March, 1941, another notice under section 34 was issued by the Noannai Board at the instance of the present appellants. On the 30th October, 1941, an order was made asking Noannai Debt Settle ment Board, to send the case to Alladinagar Debt Settlement Board and on the 13th September, 1942, the records of this case were actually sent to Alladinagar Debt Settlement Board. On the 7th January, 1943, the above case was transferred to Jaitali Debt Settlement Board and was renumbered as No. 1/1 of 1943. On the 1st February, 1944, the' Munsif Court, in which the execution proceedings were pending received a notice from Alladinagar Debt Settlement Board to the effect that the case filed by Nonaibashi Devi being case No. 782 of 1938 was dis missed by the Board and on this intimation the stay order of the 22nd November, 1940, was vacated and the decree‑holder was directed to take steps by the 5th February, 1944. On the 5th February, the execution case No. 63 of 19‑10, which was started by the decree‑holder, was dismissed for default to take any steps. But on the 16th February, 1944, the respondents started another execution case being case No. '8 of 1944. In those proceedings the properties were sold on the' 25th May, 1944, and on the 13th June, 1944, the appellants obtained another notice under section 34 of the Agricultural Debtors Act from the Jaitali Debt Settlement Board and subsequently Jaitali Debt Settlement Board transferred the case of the appellants to Begamganj Special Debt Settlement Board and there it was numbered as No. 1998 of 1946. Subsequently the learned Munsif received another notice from the Begamganj Special Debt Settlement Board to the effect that the case of the appel lants before the Debt Settlement Board being No. 1998 of 1946 was dismissed on the 24th August, 1946. On the 4th Septem ber, 1946, the appellants made another application before the Special Debt Settlement Board for revival of their case which was dismissed and on the same date without any notice to the parties the case was restored. On the 5th September, 1946, the sale of the mortgaged property was confirmed. But on the 12th September, 1946, another notice under section 34 of the Act at the instance of the present appellants was served on the execut ing Court by the Begamganj Debt Settlement Board. So on the 13th September, 1946, the present appellants made an applica tion before the executing Court under section 47 of the Code of Civil Procedure objecting to the above execution proceedings and on the 17th February, 1947, they made another application supplementing the objection already made in the application on the 13th September, 1946. Both the Courts below overruled all the objections made by the present appellants. Hence the present appeal before this Court. Mr. Acharyya appearing for the appellants has argued that inasmuch as a notice under section 34 of the Act was issued by the Noannai Debt Settlement Board at the instance of the appellants the executing Court acted without jurisdiction in dismissing the execution case No. 63 of 1940 and allowing a fresh execution case being No. 8 of 1944 to be started on the 16th February, 1948. He points out that it is true that the case of the mortgagor being case No. 782 of 1938 was dismissed and intimation to that effect was received by the executing Court on the 1st February, 1944, but as the stay order obtained by puisne mortgagees in the Miscellaneous Case No. 29/2 of 1941 from the Debt Settlement Board was still in force the executing Court had no jurisdiction either to dismiss the execu tion case No. 63 of 1940 or to allow the parties to start another execution case being execution case No. 8 in respect of the mortgaged property. Therefore, all these proceedings on and after the 5th February, 1941, are void acid inoperative. Mr. Upendra Kumar Roy appearing for the respondents has urged that there is no substance in this contention, as to start with, the appellants cannot claim the benefit of Agricultural Debtor's Act as they are not debtors. Mr. Acharyya urges that the Courts below are wrong in holding that his clients who are the puisne mortgagees are not debtors, for, not only the names of the appellants appear as judgment‑debtors but they had a liability to discharge. In support of his contention Mr. Acharyya relies on the case of Kailash Chandra Bhowmik v. Ram Kanai Chakravarty 43 C W N

187. According to the definition ,of debt as given in clause 8 of section 2 of the Agricultural Debtors Act, I am inclined to hold that the puisne mortgagee B has a liability which is a debt. A Civil Court may determine whether there is any liability at all but if the Debt Settlement Board should hold that a liability is a debt it is not for the Civil Court to sit in judgment on the decision of the Debt Settlement Board whether a particular liability is a debt or not. Presumably r in this case the Debt Settlement Board has held that the liability, was a debt and the application was made by a debtor for relief under the Agricultural Debtors Act and, therefore, issued the notice under section 34 of Agricultural Debtors Act. There fore, it cannot be said that the appellants are not debtors. Next argument advanced by Mr. Upendra Kumar Roy is that even assuming that the appellants are debtors, still the proceedings from the 5th February, 1944, onwards are not void because of the notice under section 34 of the Act obtained by the appellants on the 24th March, 1941, for the debt being the same and proceedings being pending before the same Debt Set tlement Board the dismissal of the case of Nonaibashi Devi before the Debt Settlement Board should be deemed to be also the dismissal of the case filed by the present appellants and, therefore, the notice that was issued under section 34 of the Act at the instance of the appellant on the 24th March, 1941, would cease to be alive and effective after the dismissal of the case filed by Nonaibashi Devi as intimation to the effect that her case was dismissed was admittedly received by the executing Court on the 1st February, 1944. Therefore, even if it is held that the appellants are debtors both the cases are deemed to have been dismissed and the proceedings from the 5th February, 1944, onwards must be held to be according to law. I am unable to accept this contention, for the test is whether these two cases that were filed in the Debt Settlement Board by different parties are one and the same or whether one case can be heard independently of the other and whether relief can be given to one party without giving any relief to the other party in the A other case. In my opinion, if the mortgagor did not want any relief even then the puisne mortgagees could seek relief from the Debt Settlement Board and, therefore, there is no reason why both the cases should be treated as one case simply because they related to the same property or to the same decree. The result, therefore, is that this appeal is allowed and the judgments of the Courts below are set aside and the parties will be relegated to the position they occupied before the 5th February, 1944, and they will proceed with the execution case No. 63 of 1940 from the stage where it was before the 5th February, 1944, according to law. In view of the above findings in the appeal it is not neces sary to make any order in the rule. No order as to costs in the appeal. Leave under clause 15 of the Letters Patent as prayed for is granted. A. H. Appeal allowed.