P (PLP)

At that time it is common case that some portion of the decretal amount was still unsatisfied. It is also to be noted that by limitation further execution proceedings become barred after three years; that is, in 1940. After the last execution case had been dismissed, the borrower the present appellant, made an application to the Debt Settle ment Board under section 8, Bengal Agricultural Debtors Act. This was case No. 74 of 1937 filed by him before the Board on April 2, 1937. In view of the provision of section 8, it is clear that the only matter he could agitate before the Debt Settle ment Board was the amount of his debt and facilities by way of extended time for its payment by instalments. It is clear also that the Debt Settlement Board in the proceed ings before it had no jurisdiction or legal authority to make any order for refund or repayment by the lender to the borrower in respect of any amounts already paid by the borrower, even if the Debt Settlement Board came to the view that less should be paid N by the borrower than he already paid. The only scope of relief open to be given by the Debt Settlement Board to the borrower was, if they gave the relief to the maximum extent possible, a decision that nothing was due on 2nd April, 1937, or if they gave the relief to any extent less than the maximum to find some other figure for their decision of the amount of 'debt due by the borrower, which might be less than the actual balance if calculated on the decretal less amount actual payment. In any event the highest relief they could give to the borrower was a decision that his debt at that date, the April 2, 1937, was nil. Those proceedings in the applicant by the borrower before the Debt Settlement Board were finally dismissed before the Board on 15th August, 1941. The dismissal was made under section 17 (1) (a),‑Bengal Agricultural Debtor Act. That section is to the following effect. "An application under section 8 may be dismissed by the Board at any stage of its proceedings (a) if for reasons to be stated in writing, the Board does not consider it desirable or practicable to effect a settlement of the debt." It would appear that the Board did not fulfil in full the requirements of the section since they did not state their reasons in writing. For Present purposes this makes no difference. I shall assume that the dismissal, since it was made under section 17 (1) (a), was made for good reasons I shall proceed also on the basis favourable to the appellant that such a dismissal was not an award under the Bengal Agricultural Debtors Act. That this is so, is clear from the definition itself of an award under section 2, subsection (4) of the Act. It may be mentioned in passing (though not materially affecting the present appeal) that the borrower at the date of the institution of his application before the Board succeeded in obtaining an order for stay purported to be based under section. 34, Bengal Agricultural Debtors Act by the Board staying further proceedings in execution in the learned Munsif's Court. Since there were no proceedings in truth pending in execution or otherwise at that date in the learned Munsif's Court, it would seem on the face of it that there had been in fact no jurisdiction in the Board to make such an order for stay. Whether it made the order of stay correctly or incorrectly has no bearing on the present appeal. When the application before the Board was dismissed on 16th August 1941, that stay order, would in any event have come to an end. In any case, if there was nothing to stay, as I find the stay order was during its life useless. It cannot obviously be successfully argued that because the Debt Settlement Board made a wrong stay order, therefore there must have been proceedings pending at the time when the wrong stay order was made. It will be seen that this suit by the borrower for re‑opening the decree in money suit No. 647 of 1928 was instituted on 30th August, 1941, after the proceedings before the Debt Settlement Board had been dismissed. Both the Courts below have held that the plaintiff's snit was dot maintainable under the Bengal Money‑lenders, Act for the reason that the Act did not apply to the proceedings ought to be reopened by the plaintiff, the borrower. It is against that decision that the appellant borrower has now appealed. The contention argued on his behalf by Mr. Malik is in effect that the proceedings before the Debt Settlement Board constituted a suit to which the Bengal Money‑lenders Act applies, within definition of section 2 subsection (22) of the Act, and that those proceedings were either proceeds in execution themselves or proceedings so closely connected with the execution proceedings in the suit as' to make the money it No. 647 of l928 itself and the decree passed therein itself proceeding, which the borrower would be entitled to reopen under the Bengal Money‑lenders Act. It may well be correct to hold that the proceedings before the Debt Settlement Board thems6lves constitute a proceeding within the definition of section 2 subsection (22), so as to snake for the purposes of the Bengal Money‑lenders Act, the application before the Debt Settlement Board, "a suit to which this Act applies" within the meaning of section 2 subsection (22) I This is also the view taken, as it would appear from the judgment, by a Division Bench in the combined Calcutta High Court in Muhiuddin Biswas v. Gopi Charan Mordal A I R 1944 Cal. 82; reported in 48 C W N

63. At page 86 their Lordships there observed. "A proceeding before the Debt Settlement Board, either started by the creditor, or in which the creditor had filed a claim under section 13. when the proceedings had been started by the debtor, would be a `suit to which the Bengal Money‑lenders Act applies,' if it was pending on or started after 1st January, 1939." That observation is restricted to the proceedings by a creditor. It may well be however equally true to say that the same remarks would apply to a proceeding instituted by a debtor. 1 find nothing in the language of section 2, subsection (22) to exclude the latter and include the former. I proceed therefore on the basis that the proceedings instituted by the borrower before the Board under section 8, Bengal Agricultural Debtors Act were proceedings which comprised a suit to which this Act applies. In such proceedings where they have terminated in an award, any reopening of the award is barred by the express wording of section 36, Bengal. Money‑lenders Act, in the second proviso printed in that section. After subsection (a) of sub section (1). the words being "provided that in the exercise of these powers the Court shall not do any thing which Affects an award made under the Bengal Agricultural Debtors Act; 1935." In the case cited above, this bar to the reopening of an award was also referred to. In the present case Since there has been no award, there is no bar by reason of the proviso. Had the borrower been seeking merely to re‑open proceedings, before the" Debt Settlement Board (if such proceedings can be envisaged without any award and yet of some nature desirable to be reopened) then the position would have been different It is of no service, however, to him to reopen the proceedings before the Court in the present case because he stands to suffer nothing from the result of those proceedings. In the present case, moreover, he was not claiming to reopen those proceedings. His claim is to reopen the decree to the money suit. So the real question is whether the pending proceedings before the Board can be treated as proceedings in the suit or so closely connected with it as to entitle the borrower, to reopen the decree in the suit. Any reflection on the matter based on the facts already stated shows in my view that it is impossible so to hold. It was this want of connection between the Debt settlement Board proceedings and the proceedings in suit that was as I under stand the case also intended to be referred to in the latter part of the judgment in the case cited. There these observations are made. "In our judgment the meaning of subsection (22) of section 2 is that a particular suit would still be considered to be a suit to which the Act would, apply though it had terminated in a final decree before 1st January, 1939, if any proceeding to connection with that suit, was pending on. 1st January, 1939 or had been instituted since then. An independent proceeding pending on of instituted after 1st January, 1939 that is to say, a proceeding entirely .unconnected with that particular suit‑would not bring that suit within the scope of .the Bengal Money‑lenders Act, though that independent proceeding may relate to the same loan which was the subject‑matter of that suit." The words underlined (here italicised in my quotation are italicised in the original judgment) showing I think, that in that case also the learned judge desired to emphasize this very point. As has been pointed out in several cases section 2, sub section (22), read with section 36, Bengal Money‑Lenders Act results in an extended meaning given to the word "pending" or to the words "not fully satisfied used in the second proviso of section

36. Had it not been for the direct language of the Act, in ordinary parlance a suit would not be pending after decree. The meaning of the word pending for the Act is extended to include a suit even after decree, provided execution proceedings are pending. And then again the period for re opening is further extended even if the execution proceeding would not otherwise have been held to be pending provided that (in the words of the explanation) "there remains un disposed of an application by the decree‑bolder for possession of property purchased by him in execution of the decree." But this wide extension of the proceedings which can be reopened is nowhere made to include, as part of the suit other independent proceedings such as proceedings before, the Debt Settlement Board. It is clear, therefore, in my view that the judgments of both Courts are correct. This appeal must be dismissed with costs. K. M. A Appeal dismissed.