P (PLP)

At the outset it can be said that the learned Advocate for the appellant says that his client gives up the claim for recovery of Rs. 430 found by the Debt Settlement Board to be due by the defendants from the plaintiff and his client will be satisfied if the award of the Debt Settlement Board is maintained so far as the order for possession by the defendants is concerned. The learned Advocate for the appellant raises only one point in this appeal, namely, that the Civil Court has no jurisdiction to declare that the award of the Board is void and without jurisdiction. The learned Advocate argues that even if the award of the Debt Settlement Board is wrong in law, the Board could decide it wrongly but that did not mean that jurisdiction of the Board was ousted. The learned Advocate further argues that the proviso to subsection (1) of section 18 applies to a suit regarding a debt and so in this case the decision in Title Suit No. 161 of 1935, which was a suit for recovery of possession, on compromise did not operate as a decision regarding the amount of the debt and, therefore, the proviso to section 18 (1) of the Bengal Agricultural Debtors Act is not attracted ; and, moreover, subsection (5) of section 18 governs the said proviso and, in view of the provisions in sub sections (2) and (4) of section 18, the Debt Settlement Board acted within its jurisdiction to determine the liability of t‑he debtors and the award was passed within its jurisdiction which could not be challenged in the Civil Court. It is then argued that the Debt Settlement Board has jurisdiction to decide a case rightly or wrongly and, even if it decides wrongly, the award of the Board cannot be said to be void and without jurisdiction on that ground. On the other band it is argued on behalf of the plaintiff respondent that the award of the Debt Settlement Board is without jurisdiction as it has proceeded to decide the matter in contravention of the proviso to subsection (1) of section 18 and, in the face of the compromise decree, the Board had no jurisdiction to determine the amount of the debt and it should have respected the decree in Title Suit No. 161 of 1935 and hence the plaintiff respondent contended that in these circumstances, the Civil Court had jurisdiction to interfere in the matter. The only question for determination in this case is whether the Civil Court has jurisdiction to entertain the suit. The trial Court has held that the Civil Court has no jurisdiction while the lower appellate Court has held that the Civil Court has jurisdiction. Section 9 of the Code of Civil Procedure provides that subject to the provisions contained therein, the Courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. There is no dispute that the present suit is one of a civil nature. The only question is whether its cognizance has been expressly or impliedly barred by any law. In the present suit it is not disputed that the application of the defendants before the Debt Settlement Board under section 8 of the Bengal Agricultural Debtors Act is legally entertainable and that it is in respect of a debt. The only contro versy is that in calculating the amount of the debt the Board has failed to consider the amount that has been found to be due in the compromise decree in Title Suit No. 161 of 1935 and, according to the plaintiff, this determination of the debt by the Debt Settlement Board has been in contravention of the clear and unambiguous terms of the proviso to subsection (1) of section 18 and, therefore, the provisions in subsection (4) of section 18 cannot exclude the jurisdiction of the Civil Court. It is urged on behalf of the plaintiff that the provisions in subsection (5) of section 18 is not applicable in the present case. Sections 18 (1), (2) and (4) are in the following terms :‑‑‑ 18 (1) " If there is any doubt or dispute as to the existence or amount of any debt, the Board shall decide whether the debt exists and determine its amount : Provided that a decree of a Civil Court relating to a debt shall be conclusive evidence as to existence and amount of the debt as between the parties to the decree." (2) " Before passing any orders under sections 19, 21 or 22 the Board, after considering the statements of debt submitted under section 11 and subsection (1) of section 13 and the evidence produced, if any, after having given an opportunity to the parties to appear and be heard, shall, in accordance with rules made under this Act, determine in respect of each debt the amount of the principal and the amount of the arrears of interest due thereon from the debtor up to the date of such determination." (4) " When the Board has determined under subsection (2) the amounts of the principal of a debt due from 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." The question that falls for determination in this case is if the Debt Settlement Board passes an award wrongly, whether such award can be treated as void and without jurisdiction and whether such an award can be questioned in the Civil Court in any manner other than that provided in the Bengal Agricultural Debtors Act. As I have already said that the controversy in this case is whether in view of the provisions in subsection (1) of section 1.8 and the proviso thereto, the Board rightly decided the amount of debt. Of course, this may involve disputed questions both of fact and law. But as a result of the exclusive jurisdiction of the Board, it is not always easy to draw the exact line between a case where there is lack of jurisdiction and a case of a wrong decision. If it is of the former description, a Civil Court has jurisdiction to set it right ; but if it is of the latter, a Civil Court cannot call it in question. Turning now to the present case, it appears to be undisputed that in the compromise decree in Title Suit No. 161 of 1935 for khan possession it was settled that the plaintiff would get Rs. 4,202 from the defendants in full satisfaction of the claim on the six mortgage bonds. In such a case there may well be a dispute regard ing a question of fact. Obviously a Civil Court will not interfere with the decision of the, Board on a matter of that kind. Then in the next place, there is a question of law, whether in view of the decision in the Title Suit No. 161 of 1935, the proviso to sub section (1) of section 18 shall preclude the Board to determine the amount of the debt. Apart from the terms of the proviso to subsection (1) of section 18, it would be extremely difficult to hold that the Board had no jurisdiction to deal with the matter and determine the amount of the debt. If the Board be of the opinion that the said proviso to subsection (1) of section 18 has no application in this case, it cannot be said that the Board had done anything more than it decided a point of law wrongly. In my opinion, if a Debt Settlement Board has jurisdiction to give a wrong decision on a question of fact, it must also have similar jurisdiction to give a wrong decision on a question of law. This principal is now well established. See Manager, Patore Rai Ward Estate v. Geda I3ewa and others (1941) 46 C. W. N. 12; Sitaram Bhattaeharjee v. Pancha Muchi (1941) 46 C. W. N. 14 ; Mahadeblal Agarwala v. Inder Chand Kezriwal (1944) 49 C. W. N. 237; and the decision of this Court in Letters Patent Appeal No. 7 of 1945 in the case of Maulvi Abdul Haq 141eah v. Azaharuddin Meah L. P. A. 7. of 1945, dated the 22nd June, 1950, by my Lord the Chief Justice and Ahmad J., which are cases where the Debt Settle ment Boards wrongly and erroneously held that debts occurring after the 1st January, 1940 were debts within the meaning of sub section (8) of section 2 and it was ruled therein that the Civil Court had no jurisdiction to ignore a notice under section 34 of the Bengal Agricultural Debtors Act and proceed with the proceedings in the Civil Court. To the same effect is the decision in Monmohan Roy v. Santikishan Roy and others (1945) 49 C. W. N. 288; where the Board found that the debtors were not agriculturist debtors and their Lordships held that the said finding could not be set aside on the ground that the Board did not follow the form prescribed in Appendix F to the Debt Settlement Manual. It was held in Hafizuddin Mandal and others v. Mahim Chandra Ghosh (1945) 49 C. W. N. 541 that a Debt Settlement Board must decide whether a judgment debt is barred by limitation and if such a decision is erroneous, it cannot be treated as a nullity and can only be set aside by an appeal and not by a suit in Civil Court. Similarly, it has been held in Taramoni Dassi and others v. Kali pada Haldar and others (1946) 51 C. W. N. 140, that a wrong decision by a Deht Settlement Board that a‑debt has been extin guished is an error of law and not of jurisdiction and consequently not a nullity and a Civil Court cannot disregard such a decision of the Board and that the creditor's remedy lies in an appeal provid ed for by the Bengal Agricultural Debtors Act. The respondent's Advocate relied on the case of Rahim Bux Talukdar and another v. Kanaklata Choudhurani (1946) 51 C. W. N. 151, but in that case the debtor mentioned in his application before the Board that there was one debt but denied total liabilities thereunder and it was held that the application was not a valid application under the Bengal Agricultural Debtors Act and so an order passed on such an application was not an award within the meaning of section 2 (4), which would constitute a bar to the prosecution of any proceeding in a Civil Court. But that case has no application here in this case ; and it may be stated in passing that the said decision of Chakravarty J. of the Calcutta High Court was not followed but dissented from by Harries, C. J. of the Calcutta High Court in Golapjan Bibi and others v. Sk. Sarif Ahmad and others (1947) 52 C. W. N.

103. In Hazi Maharam Ali v. Munsar Ali (1950) 55 C. W. N. (3 D. R.) 85 p. 89 = P. L. R. 1 Dacca 121, decided by my Lord the Chief justice (with whom Ahmad J. concurred) it has been observed : "In our opinion as long as there is dispute with regard to the existence of a debt, the Board has jurisdiction." In this case the Board bad jurisdiction to decide if there was existence of the debt and also as to the amount of the debt because in subsection (1) of section 18, the word used is "doubts". If in deciding the amount of the debt the Board commit ted an error of law or in fact, that decision cannot be said to be without jurisdiction and a nullity. The Board at best arrived at a wrong decision and that decision is within its jurisdiction. I have, therefore, reached the conclusion that the question now in dispute before me is a matter within the exclusive jurisdiction of the Board and that the said decision cannot be questioned in the Civil Court. Now when the Board has determined the amount of the principal of a debt due from a debtor and of the arrears of interest thereon, the decision of the Board in that respect shall not be questioned in any Civil Court or in any manner other than that provided in the Bengal Agricultural Debtors Act. This is the provision in subsection (4) of the Act. There has been a decision of the amount of the debt by the Board in this case and that decision, though it may be erroneous, is within the competence of the Board and is within jurisdiction and such a decision, in view of subsection (4) of section 18, cannot be questioned in the Civil Court or in any manner other than that provided in the Bengal Agricultural Debtors Act, namely, by appeal under section 40, or by review under section 44, or by revision in the final stage under section 40A of the Act. The principle to be followed in the present case is to be found in the well‑known decision of Wolverhampton New Water Works Co. v. Hawkesford (1859) 6 C. B. (N. S.) 336 P. 359, where Willes J., has observed as follows: "Where the statute creates a liability not existing at Common law, and gives also a particular remedy for enforcing it with respect to that class it has always been held, that the party must adopt the form of remedy given by the statute." This principle has been approved by the House of Lords in the case of Neville v London Express Newspaper, Ltd. L. R. (1:919) A. C. 368, and also by their Lordships of the Judicial Committee of the Privy Council in the case of the Secretary of State v. Mask & Co. (1940) 67 I. A. 222, to which I shall refer presently. In the case of the Crown v. County Court Judge of Essex (1887), L. R 18 Q. B. D. 704, P.

707. Lord Esher observed : "Where the Legislature has passed a new statute giving anew remedy that remedy is the only one which can be pursued' and at page 708, Lopez L. J. made the following observation In case of an act which creates a new jurisdiction, or a new procedure, new form or remedies there prescribed, and no others must be followed." In my view the aforesaid principles apply to this case. The learned Advocates appearing for both parties have placed a great reliance in the case of the Secretary of State v. Mask & Co., (supra) That was a case under the Sea Customs Act (VIII of 1878). In that case Lord Thankerton in delivering the judgment of the Board was pleased to observe as follows : "It is now necessary to determine whether the order of this Collector of Customs, dated the 20th Juue, 1933, which dismissed the appeal under section 188, and which was confirmed by the Governor‑General in Council on an application under section 191, excludes the jurisdiction of the Civil Courts to entertain a challenge of the merits of that decision. It is settled law that the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not bees complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure Section 188 provides that every order passed in appeal under this section shall, subject to the power of revision conferred by section 191 be final. By sections 188 and 191 a precise and self‑contained code of appeal is provided in regard to obligations which are created by the statute itself, and it enables the appeal to be carried to the supreme head of the executive Government. It is difficult to conceive what further challenge of the order was intended to be excluded other than a challenge in the Civil Courts". Their Lordships held in conclusion that the Civil Courts had no jurisdiction in the matter. This decision supports the contention of the learned Advocate for the appellant. But the learned Advocate for the respondent argues that as it has been ruled in that case that the Civil Courts have juris diction to examine into cases where the provisions of the Act have not been complied with and as in the present case the Board has ignored the terms of the proviso to subsection (1) of section 18 of the Bengal Agricultural Debtors Act in deter mining the amount of the debt, the Civil Courts have jurisdiction to examine into the case. I have already held that the Board has jurisdiction to determine the amount of the debt and it has jurisdiction to decide it rightly or wrongly. That decision is final and cannot be questioned, except in the manner provided in the Bengal Agricultural Debtors Act, either by appeal (section 40), review (section 44), or revision (section 40A) and subsection (4) of section 18 provides that the decision cannot be questioned in any Civil Court. That is also the decision of their Lordship's of the Judicial Committee of the Privy Council in the above case. Therefore, in my opinion, the aforesaid decision is of no avail to the plaintiff respondent in this case. The principle that where a statute creates a liability and gives a particular form for enforcing it and the party must adopt the form of remedy given by the statute is well illustrated by the decisions under the Municipal Acts in this sub‑continent‑where it has been held that Civil Courts have no jurisdiction to interfere. Sir Lawrence Jenkins C. J. when dealing with a case under the City of Bombay Municipal Act regarding the validity of an election in the case of Bhai Shanker Nanabhai v. Municipal Corporation, Bombay (1907) I L R 31 Born. 604 p. 609, observed as follows : "But where a special tribunal, out of the ordinary course, is appointed by an Act to determine questions as to rights which are the creation of that Act, then except so far as otherwise expressly provided or necessarily implied, that tribunal's jurisdiction to determine those questions is exclu sive. It is an essential condition of those rights that they should be determined in the manner prescribed by the Act to which they owe their existence. In such a case there is no ouster of the jurisdiction of the ordinary Courts, for they never had any ; there is no change of the old order of things ; a new order is brought into being." . To the same effect afire the observations of Sir Ashutosh Mukherjee, Justice, in the cases of Bhandi Singh v. Ramadhin Roy, (1906) 10 C W N 991 p. 997, and G. N. Dass, J. (with whom Lodge, J. concurred) in the case of the Municipal Commissioners, North Barrackpur v. Provakar Prosad Singh, A I R 1948 Cal.

211. Testing in the light of the aforesaid principles, I am of opinion that the contention of the learned Advocate for the appellant is of great force and must be accepted and I hold that the Civil Court has no jurisdiction to declare the award of the Debt Settlement Board, dated the 9th August 1941, as void and without jurisdiction. Another question was debated at the bar to the effect that the expression "a decree of a Civil Court relating to a debt" in the proviso to subsection (1) of section 18 of the Bengal Agricultural Debtors Act meant a decree in a suit regarding the debt. It was argued by the learned Advocate for the appellant that the said proviso prescribed that if there was a decision by the Civil Court in a suit relating to the debt, then the decree "as to existence and amount of the debt" shall be conclusive but not here in this case where the previous Title Suit No. 161 of 1935 was for declaration of title and recovery of possession and it was disposed of on compromise whereby the parties agreed that the defendants would remain in posses sion provided they paid a certain sum of money in annual instalments spreading over several years and, therefore, there was no determination of the amount of the debt, which was conclusive between the parties. The learned Advocate for the respondent argued that the decision in the said Title Suit No. 161 of 1935 vas conclusive as to the amount of the debt ; because in view of the scheme of the Bengal Agricultural Debtors Act and the determination in that case, where the plaintiff claimed possession on the basis of these usufructuary mortgages, as to the amount of debts of the defendants due on those three usufructuary mortgages and on three other simple mortgages, it was conclusive. It may be observed that the previous suit was for possession by the plaintiff on the basis of three usufructuary mortgages and in course of the suit the parties settled their disputes on the ground that the defen dants would remain in possession of the disputed land provided they paid a certain sum of money to the plaintiff in several instalments. It cannot be said that the compromise decree amounted to a determination of the amount of the debts of the defendants due to the plaintiff and it was certainly not a determination of the amount of all debts. The possession was claimed by the plaintiff as usufructuary mortgagee and so it was not within the scope of the suit to determine the amount of all debts of the defendants, which was the subject‑matter of decision before the Debt Settlement Board. Therefore, in my view the fixation of the amount of debts due to the plaintiff from the defendants could not in any way be regarded "as conclusive evidence as to the amount of debt as between the parties to the decree". This contention of the. learned Advocate for the appellant is of substance. No other question has been raised in this appeal. The learned Advocate for the appellant says that his client gives up his claim for refund of Rs. 430 given by the award of the Board, dated the 9th August 1941. The result, therefore, is that this appeal is allowed and the judgment and decree of the lower appellate Court are set aside and that of the trial Court restored with this modifica tion that the award of the Debt Settlement Board stands but that the defendants would not be entitled to recover from the plaintiff‑ the sum of Rs. 430 which was found to be due by the defendants from the plaintiff. In the circumstances of this case, the parties will bear their own costs throughout. AKBAR, J.--‑I agree. K. M. A. Appeal allowed.