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Narayan Das Alias Babua Das Vs. Parbati Dibya - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtOrissa High Court
Decided On
Case NumberM.A. No. 37 of 1961
Judge
Reported inAIR1964Ori51
ActsDebt Law; Orissa Money Lenders Act, 1939 - Sections 13; Code of Civil Procedure (CPC) , 1908 - Order 34, Rule 3(2)
AppellantNarayan Das Alias Babua Das
RespondentParbati Dibya
Appellant AdvocateR.N. Misra, Adv.
Respondent AdvocateS. Misra, ;P.C. Misra and ;D. Singh, Advs.
DispositionAppeal dismissed
Cases ReferredSarat Chandra Deb v. Bichitrananda Sahu
Excerpt:
.....(2) glt 246, are not good law]. - the liabilities of the judgment-debtor under the decree are also discharged as is clearly laid down in sub-rule (3) of rule 3 of order 34, c. that decision is clearly distinguishable. section 36(6)(a) of the bengal act lays down that notwithstanding anything contained in any law for the time being in force, the court, which, in a suit to which this act applies, passed a decree which was not fully satisfied by the first day of january 1939, may exercise the powers conferred by sub-sections (1) and (2) in any proceedings in execution of such decree. their lordships made it clear in the aforesaid decision that the liabilities of the mortgagor might have been at an end as soon as the decree had become final, but the decree itself was not satisfied unless..........13 supersedes order 34 rule 3, c. p. c. and the court has power to grant instalments even though final decree has been passed. he also lays stress on the definition of 'decree' in the act as including a final decree. section 2(a) of the act defines 'decree' means a decree as defined by the code of civil procedure and includes a decree passed by an agency court under the agency rules, an award enforceable as a decree of a court under the indian arbitration act, ix of 1899, and also preliminary decrees and final decrees in the case of secured loans. (it may be noted that the act was passed in 1933 when the arbitration act, 1940, act x of 1940, had not come into force. possibly arbitration act ix of 1899, continues in the definition by inadvertence). this definition would be operative.....
Judgment:

Misra, J.

1. The judgment-debtor is the appellant. Preliminary and final decrees for foreclosure were passed respectively on 20-2-1959 and 27-1-1960. In Execution Case No. 151 of 1960 in the Court of the Munsif, Puri, an application under Section 13 of the Orissa Money Lenders Act (hereinafter to be referred to as the Act) for granting instalments was filed on 21-7-60. The courts below rejected the application holding that it was not maintainable.

2. The point involves a substantial question of law and needs close examination. Section 13(1) of the Act runs thus:

'Notwithstanding anything to the contrary contained in any other law or in anything having the force of law or in any contract between the Moneylender and the person to whom the loan was advanced, the Court may, for reasons to be recorded in writing at any time, on the application of a judgment-debtor, after notice to the decree-holder, direct that the amount of any decree passed before or after the commencement of this Act, in respect of a loan, including any decree in a suit relating to a mortgage by which a loan is secured, shall be paid in such number of instalments and subject to such conditions on the dates fixed by it as, having regard to the circumstances of the judgment-debtor and the amount of the decree, it considers fit'

Mr. Misra contends that by virtue of the non-obstante clause, Section 13 supersedes Order 34 Rule 3, C. P. C. and the Court has power to grant instalments even though final decree has been passed. He also lays stress on the definition of 'decree' in the Act as including a final decree. Section 2(a) of the Act defines 'decree' means a decree as defined by the Code of Civil Procedure and includes a decree passed by an Agency Court under the Agency Rules, an award enforceable as a decree of a Court under the Indian Arbitration Act, IX of 1899, and also preliminary decrees and final decrees in the case of secured loans. (It may be noted that the Act was passed in 1933 when the Arbitration Act, 1940, Act X of 1940, had not come into force. Possibly Arbitration Act IX of 1899, continues in the definition by inadvertence). This definition would be operative unless there is anything repugnant in the subject or context. The decree in Section 13 indisputably refers to a preliminary decree. The short question to be answered is whether it also covers a final decree.

3. A preliminary decree in a suit for foreclosure is passed under Order 34, Rule 2, C. P. C. If the plaintiff succeeds, the Court shall pass a preliminary decree -- (a) ordering that an account be taken of what was due to the plaintiff at the date or such decree for (i) principal and interest on the mortgage, (ii) the costs of suit, if any, awarded to him and (iii) other costs, charges and expenses properly incurred by him up to that date in respect of the mortgage security together with interest thereon; or in the alternative (b) declaring the entire amount so due at that date. If the payment of the amount found or declared due under or by the preliminary decree is not made on or before the date so fixed, or the defendant fails to pay, within such time as the Court may fix, the amount adjudged due in respect of subsequent costs, charges, expenses and interest, the plaintiff shall be entitled to apply for a final decree debarring the defendant from all right to redeem the property. Under Order 34, Rule 3(2), where payment in accordance with Sub-rule (1) has not been made, the Court shall, on application made by the plaintiff in this behalf, pass a final decree declaring that the defendant and all persons claiming through or under him are debarred from all right to redeem the mortgaged property and also, if necessary, ordering the defendant to put the plaintiff in possession of the property. Under Sub-rule (3), on the passing of a final decree under Sub-rule (2), all liabilities to which the defendant in respect of the mortgage or on account of the suit shall be deemed to have been discharged. Under Section 13 of the Act, the Court may direct that the amount of any decree passed before or after the commencement of the Act, in respect of a loan, including any decree in a suit relating to a mortgage by which the loan is secured, shall be paid in different instalments as may be fixed by the Court. Once a final decree for foreclosure is passed, there is no 'amount of any decree in respect of a loan'. The language is undoubtedly wide enough to include any decree relating to a mortgage, but, in the context, it cannot include a decree in which an amount of money is not involved. To say that final decree would come within the scope of Section 13 would be repugnant in the subject and the context. The final decree for foreclosure does not involve any payment of money. After the passing of such a decree, the decree--holder has no claim for money and cannot enforce such a claim in law. The liabilities of the judgment-debtor under the decree are also discharged as is clearly laid down in Sub-rule (3) of Rule 3 of Order 34, C. P. C.

4. It is, however, contended that though ordinarily no exception can be taken to the aforesaid construction, a different conclusion is irresistible on account of the non-obstante clause to the effect 'notwithstanding anything to the contrary contained in any other law or anything having the force of law.' If a final decree for foreclosure under the Civil Procedure Code cannot be construed as involving an amount of money, by virtue of the nort-obstante clause, a different construction cannot be given to it. The non-obstante clause would he of assistance to the appellant if in the Civil Procedure Code there would have been prohibition for grant of instalments in a decree involving an amount of money relating to a mortgage. In the case of repugnancy between the Civil Procedure Code and the Act, the latter would prevail on account of the non-obstante clause. But this clause has no application to a case where there is no repugnancy. On the other hand, in the contest, it appears that the Legislature never intended that Section 13 of the Act would be applicable to a final decree for foreclosure not involving an amount of money.

5. No decision has been brought to my notice which deals with this point directly. Samiruddin Maltey v. Naba Kumar Saha, AIR 1942 Cal 224 has been cited in support of the contention that a final decree, passed under Order 34, Rule 3, C. P. C., was reopened under Section 36 of the Bengal Money Lenders Act. That decision is clearly distinguishable. Section 36(6)(a) of the Bengal Act lays down that notwithstanding anything contained in any law for the time being in force, the Court, which, in a suit to which this Act applies, passed a decree which was not fully satisfied by the first day of January 1939, may exercise the powers conferred by Sub-sections (1) and (2) in any proceedings in execution of such decree. Under Sub-section (I), notwithstanding anything contained in any law, the Court shall reopen any transaction and take an account between the parties. The section is wide enough to reopen the transaction in execution despite the passing of the decree. Their Lordships made it clear in the aforesaid decision that the liabilities of the mortgagor might have been at an end as soon as the decree had become final, but the decree itself was not satisfied unless execution proceedings were taken and the mortgagee decree-holder not possession of the mortgaged property. Under the Bengal Act, the Court has full powers to reopen even a final decree for foreclosure until the mortgagee-decree-holder gets possession of the mortgaged property. That case has no application in the face of the clear language in Section 13 of the Act.

6. Though there is no direct decision of this Court on Section 13 of the Act, there are a number of decisions of the Patna High Court Muhammad Yunus v. Champamani Bibi, AIR 1939 Pat 49, Chandrawati Debi v. Nandkishore Prasad, AIR 1940 Pat 376 and Chakradbar Mahapatra v. Sailendra Naravan Bhanj Deo, 9 Cut LT 54 (Pat) holding that 'decree' used in Section 10(1) of the Act does not include a filial decree. These decisions came up for consideration in Sarat Chandra Deb v. Bichitrananda Sahu, ILR (1950) Cut 413: (AIR 1951 Or.issa 212). Narasimham I. (as he then was) agreed with the view expressed in the Patna decisions. Jaganadha Das, J. (as he then was) took a conirary view and was inclined to refer that matter to a Full Bench which he refrained from doing as the case could be disposed of on another point. Thus the construction given by the Patna High Court on cognate sections has stood the field for the last 25 years. Despite sharp cleavage of opinion between the two learned Judges in ILR (1950) Cut 413: (AIR 1951 Orissa 212) the Orissa Legislature has not come forward with any amendment to clarify the position. In my view, Section 13 of the Act has no application to a final decree for foreclosure.

7. The appeal fails and is dismissed. In the circumstances, parties to bear their own costs throughout.


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