P L D 1952 Dacca 278 (PLP)

By the law under which the District judge exercises his jurisdiction under section .40‑A of the Bengal Agricultural Debtors Act he is required to see that justice is done. If Debt Settlement Board takes cognisance of a case which is beyond its jurisdiction the District judge has not only the power but it is also his duty to rectify the error. Aziz‑ul‑Islam for Petitioner. Bhupendra Nath Roy Chowdhury for Opposite Party No.

1. IBRAHIM, J.‑

This is an application to revise an order under section 40‑A of the Bengal Agricultural Debtors Act passed by the learned District Judge of Noakhali in Miscellaneous Case No. 103 of 1948. The opposite parties applied to Mahamaya Debt Settlement Board on an allegation that about 30 years back their predecessor Year Ali borrowed Rs. 95‑from the father of the petitioner mortgaging to the latter the lands involved in this proceeding. The petitioner contested this application. His case was that the transaction was an out and out sale and that as such the application was not maintainable. It is the case of both the parties that no document was executed in respect of this transaction. The case was decided by the Special Officer as the Board was abolished. The Special Officer was not satisfied that the transaction was a loan transaction but for the reason that there was no registered sale‑deed he found it difficult to hold that it was a sale. He, therefore, allowed the petition. An appeal was taken from his decision to the Appellate Officer. The Appellate Officer dismissed the appeal for the reason that "the case was disposed of after hearing evidence of both parties. So I agree with the S. D. O." The petitioner took the case in revision to the District Judge of Noakhali under section 40‑A of the Bengal Agricultural Debtors Act. The learned District Judge rejected the application by this order :‑"Perused records and grounds of Revision, The learned Special Officer held that the transaction was a loan and the debt had been wiped out by the produce of the soil. The learned S. D. O. concurred with the decision. The applicant creditor now claims that the transac tion was an out and out transfer of sale and the Bengal Agri cultural Debtors Act had no application. Such a view could not be taken in revision on the face of prominent facts and circumstances of the case. The finding and decision of the learned Special Officer is correct. No merit and no material for interference. Rejected." It seems to me that the learned District judge did not apply his mind as he should have done to the most vital question as to whether the transaction was a loan or an out and out sale. The question whether a particular transaction is a sale or a mortgage is a question of difficulty. It is clear from the order as I have stated that the District judge did not apply his mind to this question properly. It is apparent from his order that he was under the impression that the petitioner took this ground for the first time before him. It makes it doubtful whether the learned District Judge perused the order passed by the Special Officer. If he had done it would have been clear to him that the petitioner took this ground from the very beginning. It was not a new point that the petitioner was raising before the District judge for the first time. He seems also to have been of the opinion that such a contention, namely, whether the transaction was a sale or not could not be raised before the District Judge in Revision. In that view he was entirely wrong. By the law under which he exercises his jurisdiction under section 40‑A of the Bengal Agricultural Debtors Act the District judge is required to see that justice is done. If Debt Settlement Board takes cognizance of a case which is beyond its jurisdiction the District judge has not only the, power but it is also his duty to rectify the error. I think, in these circumstances the order of the District Judge cannot be sustained and it is set aside. The case will now go back to the District judge for disposal according to law. The Rule is made absolute accordingly. The costs of this Court will abide the result. A. H. Rule made absolute.