JUDGMENT
Chakravartti, J.
1. It is difficult to conceive of a more unmeritorious proceeding than was started by the appellant in the present appeal. It is a satisfaction to find that the relief asked for is not warnted by law.
2. The material facts are the following: on 23-11-1937, the -appellant obtained a decree for Rs. 2007-6-0- inclusive of costs against the respondent from the Presidency Small Causes Court at Calcutta. Subsequently, this decree was transferred to the Court of the subordinate Judge at Patna for execution and there an execution case was registered on the 28-8-1939. An attachment of some properties of respondent in due course followed, but on the 8-10-1939, the respondent made an application before the Debt Settlement Board. Three days later, on the 11-10-1939, the executing Court received a notice under Section 34, Bengal Agricultural Debtors Act whereupon it directed’ further proceedings to be stayed. The appellant took part in the proceedings before the Debt Settlement Board and on 31-3-1941 an award was made in his favour with his consent for a sum of Rs. 1700 payable in twenty instalments. It appears that on a subsequent date he paid the necessary court-fee on this award made in his favour.
3. To return now to the executing Court, that Court was apprised of the award on 29-4-1941, and thereupon it passed an order to the effect that the execution ease had abated in accordance with Section 34, Bengal Agricultural Debtors Act. On 28-8-1941 however, the decree-holder made an application for setting aside the order of abatement and for proceeding with the execution, principally on the ground that the liability under the decree of the Presidency Small Causes Court was not a debt within the contemplation o£ the Bengal Agricultural Debtors Act. It is out of this application that the present appeal arises.
4. The trial Court held that the Board had complete jurisdiction to deal with debt and that in any event, the civil Court was not entitled to go behind the award. In that view, it dismissed the appellant’s application. On appeal by him the lower appellate Court held that before the introduction of a definition of Civil Court into the Bengal Agricultural Debtors by Act 8 [VII] of 1910, which came into force on 11th July of that year, ‘Civil Court’ as contemplated by the Act would include a Presidency Small Causes Court as well. Accordingly, the learned Judge took the view that the liability under the decree in the present case was a debt within the meaning of. the Special Act and that, accordingly, not only had the Debt Settlement Board full jurisdiction to deal with it, but that the Court also was bound to hold the proceedings before it to have abated as the executing Court Court had, in fact, done.
5. It is contended by the appellant that in taking the view that before the introduction of the definition of ‘Civil Court’ into the Bengal Agricultural Debtors Act, a liability constituted by a decree of the Presidency Small Causes Court would be a debt within the meaning of the Act, the learned Judge was in error. It was, accordingly, urged that if the liability was not in fact a debt, the previous order of the executing court that the proceedings were liable to be stayed and the second order that the proceedings had abated were both erroneous, and the appellant was entitled to have them reviewed and set aside on the application now made. In support of this contention reference was made to the decision of the Special Bench in Matital Saha v. Chandra Kanta Sarkar .
6. With regard to that case, it is sufficient to say that so far as the validity of a notice under Section 34 is concerned, it has no application. The notice in the present case was served under the old Section 34 which had been passed when the Government of India Act of 1910 was in force and it could not be said that that section was ultra vires of the Bengal Legislature. But at the same time, Section 20, of the Act, as it then stood, did not confer any exclusive jurisdiction on the Debt Settlement Board to decide whether a liability was a debt or not. The position, therefore, was that while a notice under Section 34 with respect to a decree of a Presidency Small Causes Court could not be questioned on the ground of lack of initial jurisdiction, on the other hand, the civil Court receiving such a notice would be at liberty to decide whether the decree did or did not constitute a debt as contemplated by the Act.
7. With regard to the question as to whether prior to the amendment of 1940, a decree of a Presidency Small Causes Court constituted a debt as contemplated by the Bengal Agricultural Debtors Act, we are inclined to think, as indeed was held in the Special Bench case above referred to, that it was not such a debt. But the question in the present case is, in our view, immaterial. From the facts I have stated above, it will appear that after the executing Court had decided to stay the proceedings, the decree holder, went to the Debt Settlement Board, submitted to its jurisdiction, obtained the benefit of an award and acquired for the award the force of a decree by putting the necessary Court-fees thereon. All this could have been done only on the basis that he accepted the liability owing to him to be a debt as contemplated by the Special Act. For him now to return to the Civil Court and to try to avoid the award by taking up a wholly different position is, in our opinion, clearly not permissible. The order of the Debt Settlement Board records quite clearly that he was a consenting party to the award. The position taken up by the appellant before the Debt Settlement Board was that the Board was properly seized of jurisdiction in respect of the debt owing to him. By that position, in our opinion, the decree-holder must abide. It is, in our opinion, not open to him to question the order passed by the executing Court on the same view of the debt which he himself took before the Debt Settlement Board and of which he obtained the full benefit. Apart, therefore, from the question as to whether the liability concerned was or was not a debt within the meaning of the Act, we are of opinion that the decree-holder, having proceeded throughout on the footing that it was a debt and having obtained or suffered orders of both the Board and the Court on the said footing, is now precluded from putting forward any different view as to the nature of the liability.
8. For the reasons given above, this appeal fails, and is dismissed with costs. No orders are necessary on the alternative application under Section 115, Civil P.C.
Ellis, J.
I agree.
