Authored By : B.K. Mukherjea, Thomas Hobart Ellis

B.K. Mukherjea, J.

1. This rule is directed against an order of the DistrictJudge of Murshidabad dated 17th May 1944, made under Section 40 A, BengalAgricultural Debtors Act. The petitioners before us borrowed money from theopposite parties on hypothecation of certain properties and the latter obtaineda mortgage decree against the petitioners on the basis of the mortgage bond, inthe Court of the Subordinate Judge of Murshidabad, some time in 1937. In executionof the decree the mortgaged properties were sold and they were purchased by thedecree-holder in January 1938. Some time in 1941, the petitioners filed anapplication before the Subordinate Judge of Murshidabad under Section 36,Bengal Money Lenders Act of 1940, praying for the re-opening of the mortgagedecree and other consequential reliefs. The decree-holder resisted theapplication and contended inter alia that there being no suit or proceeding inconnexion with the mortgage debt pending on or after 1st January 1939, thepetitioners were entitled to no relief under the Money Lenders Act. The Courtheard the parties on this point and accepting the contention of thedecree-holder dismissed the application of the mortgagors under Section 36,Bengal Money Lenders Act. There was a subsequent application by the borrowerfor reconsideration of the order of dismissal but that application was alsorejected. After the passing of Bengal Act 2 of 1942, which amended the BengalAgricultural Debtors Act of 1936, the petitioners presented an applicationunder Section 37A of the Act, before the Special Debt Settlement Board at Kandiagainst the decree-holder praying for recovery of possession of the propertiessold in execution of the mortgage decree. The Debt Settlement Board rejectedthe application on the ground that as the civil Court had previouslyentertained an application in respect of the debt under Section 36, BengalMoney Lenders Act, the application under Section 37A, Bengal AgriculturalDebtors Act, could not be entertained in view of the provisions of Sub-section(3). There was an appeal taken against this decision to the Appellate Officerwho concurred in the view taken by the Debt Settlement Board and dismissed theappeal. The petitioners thereupon filed a petition of revision before theDistrict Judge of Murshidabad under Section 40 A, Bengal Agricultural DebtorsAct. The District Judge by his order dated 17th May 1944, dismissed thepetition and confirmed the order of the Appellate Officer. It is against thisorder of the District Judge that the present rule has been obtained.

2. The sole point for our consideration in this rule is whatis the meaning to be attached to the expression "entertain" as usedin Sub-section (3) of Section 37A, Bengal Agricultural Debtors Act. Thequestion came up for consideration before this Bench in a number of cases, videSashi Bhusan v. Motibala Dassi : AIR1945Cal317 , Sm.Charubala v. Amulya (45) : 49 C. W. N. 156, Lalit Mohan v.Raghu Das (45) : 49 C.W.N. 157and Bogra Bank v. Ainuddin(45) 49 C. W. N. 158 and it was held that to "entertain" is to"admit a thing for consideration" and when a suit or proceeding isnot thrown out in limine but the Court receives it for consideration anddisposal according to law it must be regarded as entertaining the suit orproceeding no matter whatever the ultimate decision might be. Mr. ApurbadhanMukherji, appearing in support of the rule, has contended before us that theview taken in the above cases is not right. His argument is that"entertaining" is the same thing as giving relief and it is in thissense that the word is used in Section 14, Limitation Act. He has referred usin this connexion to a number of cases which are to be found reported inVarajlal v. Shomeswar (05) 29 Bom. 219, Arunachalam v. Lakshmana (16) 3, Sadayatan v. Ram Chandra (34) 21 andUpendra v. Suryakanta (13) 20 I. C. 205 (Cal.). The contention does not appearto us to be at all sound. The object of Section 14, Limitation Act, is to giveprotection to a bona fide litigant against the bar of limitation when he hastried, his best to get his case heard but has failed to get a hearing becausethe Court has been unable to entertain it on account of defect of jurisdictionor other grounds of a like nature. The inability to entertain a suit means notinability to grant relief to the plaintiff but inability to give him a trial atall, and as Section 14, Limitation Act, can be invoked only in cases where theprevious suit or proceeding has not been heard on its merits the word;"entertain" seems to have been deliberately used by the Legislature.Because the section speaks of the inability of the Court to entertain a suit orproceeding on certain specific grounds only, which are of a formal nature it,cannot be argued that by implication the Legislature concedes that the Courtmight be regarded as not entertaining a suit even when the suit fails on itsmerits. The cases cited by Mr. Mukherji do not touch the present point at all.What is laid down in all of them is that Section 14, Limitation Act, isapplicable when the Court itself decides that it is unable to entertain a suitfor want of jurisdiction or other similar grounds; but if the suit is withdrawnby the plaintiff under Order 23, Rule 1, Civil P. C., with liberty to bring afresh suit, then in computing the period of limitation for the second suit theprovisions of Section 14(1), Limitation Act, cannot be invoked. The basis ofthese decisions is that under Order 23, Rule 2, Civil P. C, the suit withdrawnis to be treated as non-existent for all purposes and if the existence of theprevious suit has to be ignored, altogether it cannot possibly be taken intoaccount in considering whether the subsequent suit, is or is not barred bylimitation. Obviously, these decisions have no bearing on the present questionand do not assist the petitioners in the least.

3. We adhere to the view which we have taken in the casesreferred to above and hold that a suit is to be regarded as not"entertained" by the Court only if it is thrown out at its inceptionand the Court does not decide it on its merits. We may say that the language ofthe sub-section is not at all happy and there is no clear indication as to whatexactly was the intention of the Legislature in making this provision. If theintention of the Legislature was that where a debtor had already obtainedrelief under one Act he should not be allowed to seek relief under the othernothing prevented it from expressing that intention in clear words. As Section37A was introduced nearly two years after the Bengal Money Lenders Act of 1940was passed, and the two Acts were not in existence at the same time it isdifficult to say that the principle underlying the sub-section is strictly oneof election of remedies. The language of Sub-section (3), however, clearlysuggests that if a proceeding is pending before a civil Court though notdecided as yet a Debt Settlement Board is not competent to entertain anapplication under the section. To operate as a bar therefore it is notnecessary that there should be a decision by the other tribunal and a fortiori,the nature of the decision, if in point of fact there is a decision already, isimmaterial. In these circumstances, it cannot but be held that the sub-sectionraises a bar as soon as it is established that there was a suit or applicationentertained for disposal by a civil Court no matter in whichever way it wasactually disposed of.

4. It is true that the mere fact that a suit or applicationis entered in the register of the Court is not conclusive to show that it wasentertained. The question whether it is entertainable or not might be raised ata later stage and the Court might then decide not to entertain the case. It isnot necessary for us to formulate exhaustively the different grounds upon whicha Court might refuse to entertain a suit or proceeding. They may includegrounds of jurisdiction and of procedure as well, and in each case the pointfor determination would be whether the Court did entertain the suit orapplication and then decided that the plaintiff was not entitled to any reliefor it declined to embark upon the case at all. The Bengal Money Lenders Actbeing a special Act it is necessary that certain facts would have to beestablished by the borrower to entitle him to relief under the Act. If theCourt has jurisdiction to give relief to the borrower and there is no otherdefect in the procedure or otherwise for which a suit or application is liableto be thrown out in limine and the Court decides on facts admitted or provedthat the plaintiff is not entitled to any relief under the Bengal Money LendersAct it must be held that such decision is on the merits of the case and the casewas entertained by the Court and decided against the plaintiff. It has beenheld by this Bench that when an application under Section 36, Bengal MoneyLenders Act, is dismissed by a Court on the ground that the loan was acommercial loan the application should be regarded as being entertained by theCourt and not thrown out in limine : 49 C.W.N. 158. We thinkthat the position would be the same when such application is dismissed by theCourt on the ground that the decree sought to be re-opened was not made in asuit to which the Act applies. This is also a question relating to the meritsof the case and is one of the matters in issue which has to be decided by theCourt before it can re-open the decree or grant any relief to the borrower. TheCourt must first entertain the suit or application before these questions areinvestigated and the mere fact that points are described as preliminary pointsis really immaterial. In the case before us the mortgage decree was executedand the properties were sold long before 1st January 1939, and no suit orproceeding in connexion with the mortgage debt was pending on or after thatdate. In these circumstances, if the Court dismissed the application underSection 36, Bengal Money Lenders Act, and held that the borrower was entitledto no relief it cannot be held that the Court did not entertain the applicationat all. In our opinion, therefore, the view taken by the District Judge isright.

5. After the arguments were closed Mr. Apurbadhan Mukherjidrew our attention to a judgment of our learned brother Henderson J., passed inCivil Rule No. 1362 of 1944 in support of the view that the dismissal of anapplication under Section 36, Bengal Money Lenders Act, on the ground thatthere is no suit to which the Act applied amounts to throwing out theapplication in limine. The facts of this case however are quite different. Herean application for relief made by the borrower under the Bengal Money LendersAct was dismissed by the Court below on the ground that though proceedings inexecution of the decree sought to be re-opened were started by thedecree-holder after 1st January 1939 yet these proceedings not being actuallypending at the time when the application under the Bengal Money Lenders Act wasmade the borrower was entitled to no relief. This was obviously a wrongdecision and the ground upon which it was based could not be supported. In thisCourt the decree-holder attempted to support the order of dismissal made by theCourt below on the ground that previous to this proceeding under the BengalMoney Lenders Act the borrower had approached the Debt Settlement Board, forrelief under Section 37A, Bengal Agricultural Debtors Act, and that applicationbeing entertained by the Debt Settlement Board Sub-section (3) of the sectionoperated as a bar to his seeking relief under the Bengal Money Lenders Act.This contention was accepted by Henderson J. and the rule was discharged onthat ground. We may say with respect that we are in entire agreement with thisdecision. In course of the judgment there was another fact noticed by ourlearned brother namely that even before the borrower approached the DebtSettlement Board there was a still earlier application made by him underSection 36, Bengal Money Lenders Act, but as the decree-holder had not takenany step at that time for execution of the decree the Court rejected theapplication observing that the borrower might make the application if and whenthe decree-holder would put the decree into execution. It was observed by ourlearned brother that this amounted to throwing out of the application inlimine. The observation might have been proper having regard to the nature ofthe order actually made but certainly it was not a matter for decision in thecase at all. Nothing really turned upon the question as to whether the firstapplication under the Bengal Money Lenders Act was entertained by the Court orrejected in limine. The question might have had a bearing on the point as towhether the Debt Settlement Board could entertain the application under Section37A, Bengal Agricultural Debtors Act, but the fact remains that the applicationwas actually entertained by the Debt Settlement Board and not thrown out at itsinception and consequently the application under Section 36, Bengal MoneyLenders Act, must be deemed to be barred. The decision in the rule mentionedabove is perfectly sound and in our opinion it does not assist the petitionersin the present case. The result is that the rule is discharged. We make no-orderas to costs.

Thomas Hobart Ellis, J.

6. I agree.

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Nakul Chandra Ghose and Ors.vs. Shyamapada Ghose (04.05.1945- CALHC)