JUDGMENT

Derbyshire, C.J. - This is an appeal from a decision of Panckridge, J. given on 14th December 1937, whereby he held that part of a consent decree of this High Court was barred from execution by reason of the provisions of Sections 34 and 35, Bengal Agricultural Debtors Act, 1935. The decree in question was in Suit No. 1051 of 1935 and was dated 20th December 1935; it provided for the payment of Rs. 52,000 with interest in certain instalments, and the charging of certain properties set out in the schedule for the payment of the said decretal amount. The plaintiffs are a registered firm carrying on a business as commission agents at No. 9, Armenian Street, Calcutta. The defendants are members of a joint Hindu family governed by the Mitakshara School and are said to be carrying on a coparcenary business in piece-goods at Jalpaiguri, Bengal, under the name and style of Sewlal Momraj Agarwalla. Chogemull is described as the karta of the said Hindu family. The plaintiffs supplied the defendants with piece-goods from time to time and also lent them money on hundis bearing interest at 12 per cent, per annum. The moneys owing were to be paid by the defendants to the plaintiffs at No. 9, Armenian Street, Calcutta. On 7th August 1934, accounts between the parties were adjusted and stated in writing in the plaintiffs' books and signed by the defendants. The amount so stated as owing was Rupees 72,435-13.6. On 28th May 1935 the plaintiffs' claim with interest amounted to Rs. 80,491-13-9. In para. 5 of the plaint in the original suit it was stated:

That the plaintiffs' cause of action arose partly within and partly without the limits of the jurisdiction of the Original Side of the High Court in Calcutta. Plaintiffs crave leave to institute the suit in the Calcutta High Court "under Clause 12 of the Letters Patent."

2. Such leave was granted. On 20th December 1935, a decree was passed by the Calcutta High Court (Original Side) in favour of the plaintiffs against the defendants for the sum of Rs. 52,000 with interest at 6 3/4 per cent, per annum from the date of the decree until realization. The decree was by consent. In a schedule annexed to the terms of settlement and forming part of the decree certain properties were mentioned as being charged with the payment of the decretal amount. The properties comprise lands and buildings in Jalpaiguri and some shares in certain companies. All the properties mentioned are situate in the town of Jalpaiguri and are houses or shops with land; none of them are described as agricultural. It is further stated in the decree that the plaintiffs are entitled to take out execution against the properties charged and sell the same without the necessity of a separate suit, and that the plaintiffs have the right to have a receiver appointed on notice to the defendants. There was default on the defendants' part in carrying out the terms of the decree and on 30th August 1937 the Official Receiver of the High Court was appointed receiver of the properties above mentioned, including the shares. On 9th September 1937, in order to save the expenses of the Official Receiver, by an order of the Court, the Official Receiver was discharged and two attorneys, Messrs. R.C. Deb and J.N. Sharma, were appointed joint receivers of the properties charged in place of the Official Receiver with liberty to sell the said shares (but not the real property) and pay the proceeds of the sale to the plaintiffs or their attorneys in satisfaction of the decree. On or about 18th September 1937, the defendants applied u/s 8, Bengal Agricultural Debtors Act, to the Sannyashi Kata Debt Arbitration Board, situate in the District of Jalpaiguri, for settlement of their debts in accordance with the provisions of that Act. On that date a notice, pursuant to the Rules framed under the Act, was sent by the Chairman of the Sannyashi Kata Debt Arbitration Board to the Original Side of this Court as follows:

It is submitted that I notify u/s 34, Benga