1 This First Appeal is against the judgment and decree dated 27-4-1948 of Sri R.C. Misra, Subordinate Judge of Berhampur,and is brought by the creditor (defendant 1), theCourt having allowed relief under the provisions of Section 10, Orissa Money-Lenders Act in favour of the plaintiffs. Defendant 3 (Ghanosyamo Sahu) was the original debtor along with one Bada Khetrabasi. Plaintiff 2 Raghunath and defendant 4 Neelakantha Sahu are the sons of defendant 3. Plaintiff 1 Khetrabasi is the brother of the said Ghanosyamo. Baba Khetrabasi was not a member of the family, but a partner in business with them. Padma Sahuani (plaintiff 3) is the widow of deceased Bada Khetrabasi. The said Bada Khetrabasi and defendant 3 executed a promissory note of Rs. 4000/- (Ext. 2) in favour of defendant 1 on 19-4-1931, the note bearing interest at twelve per cent, per annum. Thereafter the executants used to make occasional payments and also used to borrow further sums from time to time. The biggest item that they borrowed after the execution of the said handnote was Rs. 2015/5/6. On calculation, the total amount due to the creditor was found to be Rs. 9382/- on 11-8-1936.
The said Bada Khetrabasi and defendant 3 executed a further handnote on 11-8-1936, for the said amount, that is, Rs. 9382/- (Ext. 2-a). It is important to note here that for a part of this amount due upon the promissory note dated 11-8-1936, that is, for Rs. 5800/-, the debtors executed a simple Mortgage bond (Ext. 1) in favour of the said creditor on 13-4-1937. Defendant 1 brought a suit on the basis of the said promissory note dated 11-8-1936, for the recovery of the amount from the debtors, that is, Bada Khetrabasi and defendant 3, due on the handnote excluding the amount which was covered by the said mortgage bond dated 13-4-1937, Eventually, the creditor got a decree in O. S. No. 16/41; the decree was completely satisfied by a deposit, having been made by the judgment-debtors, of a sum of Rs. 3751/4/7 excluding the costs. The plaintiffs and defendants 3 and 4 having sold some of their properties, mortgaged to defendant 1, to defendant 2, defendant 2 deposited in Court a sum of Rs. 9864/5/6 on 27-1-1945, under the provisions of Section 83, T. P. Act. Defendant 1, the mortgagee, however, refused to take the amount in full satisfaction of the mortgage dues, but was willing to accept it in part satisfaction of them. The petition, however, was not pressed by defendant 2 and the deposit is still in Court.
The plaintiffs bring this suit seeking relief under the provisions of Section 10, Orissa Money-Lenders Act on the allegations that the cash consideration that passed between the creditor and the debtors in respect of the above three transactions, that is, promissory notes dated 19-4-1931 and 11-8-1936 and the mortgage bond dated 13-4-1937, is only Rs. 6216/11/6; that the creditor, under the present law, is not entitled to more than double the amount, that, at any rate, the creditor having already realised Rs. 6977/15/4 is entitled now only to a sum of Rs. 5455/15/8; as such, the plaintiffs pray for declaration that out of the deposit made by defendant 2 defendant 1 is entitled only to a sum of Rs. 5455/15/8 and the plaintiffs are entitled to f:he balance.
2. Tile trial Court, accepting the legal position relied upon by the plaintiffs, that they are entitled to reopen the previous transactions under the provisions of Section 10, Orissa Money-Lenders Act, has decreed the suit on the following terms:
'That the suit be decreed on contest against defendant 1 in favour of the plaintiffs as well as defendants 3 and 4. Preliminary accounts to determine how much defendant 1 shall be entitl-ed out of the amount deposited in Court by the pro forma defendant 2. Let it be declared that defendant 1 shall be entitled under his mortgage out of the amount in deposit only double the principal amount actually lent less those realised so far previously either under the two promissory notes or under the decree in O. Section 16/41. The costs of that decree however shall be excluded. The balance of the amount in deposit, the plaintiffs and defendants 3 ' and 4 shall be entitled to. Parties shall bear their own costs of this suit.'
3. Several pleas were taken in the trial Court by the defendant but Mr. P.C. Chatterji, appearing on behalf of defendant 1, the appellant, has very fairly pressed only two contentions; (i) that the suit as framed is not maintainable and is barred under the proviso to Section 42, Specific Belief Act; and (ii) that in any view, in reopening the previous transactions, the Court is to take completely out of consideration the amount which merged into a decree and had been completely satisfied,
4. In developing his first point, Mr. Chatterji has drawn our attention to the reliefs sought for in the plaint of the present suit which runs as follows:
'Therefore the plaintiffs pray that the Honourable Court may be pleased to pass decree with costs:
(i) declaring that defendant 1 is entitled to only a sum of Rs. 5455/15/8 out of the amount of Rs. 9864/5/6 now in deposit in M.J.C. 9/45 in this Court towards full discharge of his money lending transaction from 1931 to 1945 with the plaintiffs and defendants 3 and 4:
(ii) declaring that the plaintiffs are solely entitled to the rest of the amount of Rs. 4408/5/10 out of the said deposit amount or in the alternative declaring that the plaintiffs and defendants 3 and 4 are together entitled to the said excess amount of Rs. 4408/5/10:
(iii) granting such other or further relief as to the Court may deem fit in the circumstances of the case.'
Mr. Chatterji contends that the reliefs of meredeclaration as to how much defendant 1 is entitled and how much the plaintiffs and other parties are entitled to are not sufficient for maintaining a suit when the further relief for refundof money to the plaintiffs is available to them:as such, the suit is clearly hit by the proviso to Section 42, Specific Relief Act which runs as follows:
'42. xx xx xx Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.'
The simple answer to this contention of Mr. Chatterji is that the money is still in deposit in Court, that is to say, in 'custodia legis'. in such a case, the plaintiffs need not, pray for refund inasmuch as a mere declaration is sufficient for the purpose of withdrawing the amount from Court as to which they are declared by Court to be entitled. We may refer to a decision, reported in -- 'Vedanayaga Mudaliar v. Vedammal', 27 Mad 59 (A), the facts of the case being that a minor was entitled to a certain property which was in possession of his mother; the plaintiff filed an application under the Guardians and Wards Act for an order appointing him guardian of the property of the minor; pending the hearing of thisapplication he was appointed the receiver' of the property and in this capacity he took possession of it from the mother; the validity of the order appointing the plaintiff receiver was challenged and it was ultimately held that the order had been wrongly passed and directed that the mother be replaced in possession of the property; the minor having been murdered the receiver filed a suit for a declaration that he was entitled to the property of the minor as the nearest reversioner; it was contended by the mother that the suit could not be maintained without a prayer for possession;but the Court held trial the property was then neither in the possession of the plaintiff nor in the possession of the mother but was in 'custodia legis'; and the fact that it was in possession of the plaintiff made no difference as it was a mere accident. The possession, therefore, being with Court, a mere declaration of title is sufficient to maintain a suit.
The same view also was reiterated in -- 'Malaya Pillai v. Tirumala Perumal Pillai', 36 Mad 62 (B) In that case proceedings were taken under Ss. 145 and 146, Criminal P. C., and a receiver was appointed to hold possession of the property in dispute. At the time of the suit, the property being still in possession of the receiver, their Lordships held that there was no necessity to claim any further consequential relief; a mere declaration of title was sufficient to take out all the mischiefs of the proviso to Section 42, Specific Relief Act.
We have had the advantage of the thoroughdiscussion of the question after review of severaldecisions on the point in -- 'K. Sundaresa Iyer v.Saravajana Sowkiabi Virdhi Nidhi Ltd.', AIR 1939Mad 853 (C), decided by Leach C. J. and PatanjaliSastri J. (as he then was). The leading judgmentwas delivered by Chief Justice Leach who confirmed the view that a suit for mere declaration that'the plaintiff was owner of certain property without consequential relief for possession was maintainable if at the time of the institution of thesuit the property was in possession of the Courtpending the decision of the suit and not in thepossession of the person against whom the relief was sought. Chief Justice Leach had also discussed in his judgment a Privy Council decision reported in -- 'Sunder Singh v. Sunder Singh', AIR 1938 PC 73 (D), where their Lordships of the Privy Council, agreeing with the High Court,expressed the view that where the plaintiff claimed to be a trustee and administrator of certain institution of which neither he nor defendant was in possession or control of the management, a suit for mere declaration under Section 42 was maintainable
Mr. Chatterji, however, strongly relies upon a further observation made by their Lordships of the Privy Council in the aforesaid decision which runs as follows:
'And it may be added that where it is not open to the plaintiff to pray for possession also as against the defendant, injunction is the further relief within the meaning of the proviso.'
We, however, find in the present case that no prayer for injunction is necessary in view of the position that after the deposit was made in Court tinder the provision of Section 83, T. P. Act, defendant 1 refused to accept the deposit in full satisfaction of his amount, and, as such, as we are given to understand, the deposit is still lying in Court. (5) We would further observe that the plea, thesuit is not maintainable under the proviso to Section 42, Specific Relief Act, was not taken in the trial
Court and is being taken for the first time in cms appeal. Had the plea been taken in the trial Courtthe plaintiffs would have got an opportunity of getting the plaint amended accordingly and paid the necessary court-fees. We are, therefore, inclined to hold that the point could not be taken for the first time in appeal; but as the point was argued at some length at the Bar we have expressed our view on the point.
6. Mr. Chatterji further argues that the plaintiffs will not be entitled to relief under the provisions of Section 10, Orissa Money-Lenders Act in a suit of this nature. Relief under Section 10 is available only in a suit for redemption brought by the plaintiff. Section 10(1) runs thus:
'Notwithstanding anything to the contrary contained in any other law or in anything having the force of law or in any contract, no Court shall, in any suit whether brought by a moneylender or by any other person in respect of a loan advanced before or after the commencement of this Act, pass a decree for an amount of interest for the period preceding the institution of the suit which, together with any amount already realised as interest through Court or otherwise, is greater than the amount of the loan originally advanced.'
The language used 'in any suit whether brought by a money-lender or by any other person in respect of a loan advanced before or after the commencement of this Act' is wide enough to embrace the present suit within the meaning of this language inasmuch as the present suit is also in respect of the loan advanced, that is, for a declaration on the basis of the loan advanced on the mortgage transaction. In our opinion, we would be unnecessarily putting too narrow a construction upon the above Clause which is not warranted by law if we accept the contention of Mr. Chatterji.
7. Urging the second point, Mr. Chatterji's contention is that the dues on the promissory note dated 11-8-1936 excluding the amount which was the subject-matter of the mortgage transaction dated 13-4-1937, were converted into a decree and had been completely satisfied; as such, that cannot be reopened and, at any rate, that is to be Taken out of consideration if relief is at all to be given to the present plaintiffs. As we have made it clear in stating the case that defendant 3 and Bada Khetrabasi executed a promissory note for Rs. 9382/- on 11-8-1936; and a part of this consideration, that is, Rs. 5800/-, was secured by a subsequent mortgage bond dated 13-4-1937. That mortgage transaction, is still subsisting and has not been sued upon by the mortgagee-creditor. As we have found, the present suit is in respect of 'the loan advanced', that is, for a declaration in respect of the dues of the mortgagee on the basis of the mortgage transaction which undoubtedly is, within the definition given in the Act, a loan, as the transaction carries interest and is in respect of past liability.
Once we find that the present suit is in respect of a loan advanced, the Court is given the power under the section to reopen the transaction and ascertain that the interest for the period preceding the institution of the suit together with any amount already realised and received through Court or otherwise is greater than the amount of 'loan originally advanced'. The Court is empowered to trace back the cash consideration passed between the parties at the time of the original loan and is to take account of all amount received by ths creditor as interest 'through Court or otherwise'. In the present case, even though the decretal dues under the handnote were deposited in Court and the decree was satisfied, the Court is empowered to reopen the transaction and takeinto account the receipts made by the creditor so as to conform to the limit that the creditor would not be entitled to any amount greater than the amount of the loan originally advanced. Mr. Chatterji has further contended that out of the deposit in Court in satisfaction of the previous handnote dated 11-8-1936, the amount of costs of that suit should be excluded; but as we find in the statement of facts in the lower Court the judgment-debtors deposited a sum of Rs. 3751/4/7 in discharge of the decretal dues excluding the costs.
8. The last point taken up by Mr. Chatterji is that the future interest granted in the previous decree should not be considered as interest. The contention seems to have no force in view of the clear language of the section 'that any amount realised as interest through Court or otherwise' is to be taken into account and it does not make any difference between the past interest and the future interest in respect of the previous transaction that had merged into a decree passed on the basis of a part of the consideration.
9. In conclusion, therefore, the appeal fails and is dismissed with costs. The decree passed by the lower Court is confirmed.