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Kumar Jogendra NaraIn Singh and ors. Vs. Sourendra NaraIn Sinha and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1941Cal431
AppellantKumar Jogendra NaraIn Singh and ors.
RespondentSourendra NaraIn Sinha and ors.
Cases ReferredSuresh Chandra Mukherjee v. Lal Mohan Chatterjee. In
Excerpt:
- .....of a direct appeal. in the present case we are not concerned with the validity or legality of the decree in an appeal against the decree itself as this decree has never been challenged in such an appeal since it was passed on 15th february 1917. the appeal which is actually pending before us cannot be said to be one in respect of the decree passed by the ali-pore court, but is merely in respect of certain orders made by the learned additional judge during the course of the execution proceedings. in this view of the case we must hold that we have no jurisdiction to deal with the application which has been filed under s.36, bengal money-lenders act, but that it will be for the petitioners, if they so desire, to make this application in the court of the learned district judge of alipore......
Judgment:

Edgley, J.

1. In this case an application has been filed under Section 36, Bengal Moneylenders Act, 1940, in which we are asked to give certain relief to the petitioners under the provisions of that Act. It appears that the decree-holders are seeking to execute a decree which was passed in suit No. 38 of 1916 by the learned District Judge of Alipore on 15th February 1917. The decree in question was for the sum of 17 lacs of rupees, and it is contended that the petitioners are entitled to relief as the principal amount borrowed by them from the decree-holders does not exceed Rs. 6,29,629, and that in these circumstances they are entitled either to have the decree re-opened under Section 36 (1) (a), Bengal Money-lenders Act or, at any rate, to be released from all liability in excess of the limits specified in Clauses (1) and (2) of Section 30 of the Act. This application was filed in this Court in connexion with F. M. A. No. 197 of 1940, which was directed against the order of the learned Additional Judge of the 24 Parganas dated 6th June 1940, whereby he had dismissed certain objections raised by the judgment-debtors in connexion with the execution proceedings. A preliminary point has been raised by Mr. Banerjee on behalf of the decree-holders to the effect that this Court has no jurisdiction to deal with the application under Section 36, Bengal Money-lenders Act, as the decree in suit No. 38 of 1916, which the decree-holders were seeking to execute, had been passed by the District Judge of Alipore. Mr. Bose, on the other hand, contends that this Court is vested with the requisite jurisdiction to deal with the matter under the provisions of Section 36 (6) (b) of the Act. The question of the procedure which should be adopted in connexion with applications of this nature was considered by me recently in connexion with suit No. 1146 of 1936 on the original side of this Court in Suresh Chandra Mukherjee v. Lal Mohan Chatterjee. In my judgment in that case I pointed out that:

The provisions of Section 36 allow the borrower to obtain relief either by filing a suit or by making an application. In the case of applications it appears from the provisions of Section 36 (6) of the Act that, as far as Courts of original jurisdiction are concerned, it was the intention of the Legislature that such applications should be made either in the proceedings in execution of a decree or, if no such proceedings have been taken or are pending, the debtor should be at liberty to file what is described in the Act as an application for review...as regards applications for the review of a decree, a special period of limitation has been provided, namely one year from the commencement of the Act. It may have been intended in suitable cases to treat decrees which violate the provisions of Section 30 of the Act as being open to review on account of some mistake or error apparent on the face of the record.

2. In the present case the petitioner does not seek any relief by way of a suit under Section 36 of the Act. From its nature the application with which we are now dealing appears to have been filed as an application for review within the meaning of Section 36 (6) (a) (ii) of the Act. The only question which we are called upon to decide at the present moment is whether this application should have been made in the Court of the District Judge of All-pore, or whether, as contended by Mr. Bose, we ourselves have jurisdiction to deal with the matter under Section 36 (6) (b) of the Act. In my view the general scheme of Section 36, Ben gal Money-lenders Act with regard to matters of this sort is that applications for relief should ordinarily be made to the Court which passed the decree, which for obvious reasons is in a better position than some other Court to consider the extent to which relief should be granted. Mr. Bose however argues that the words at the beginning of el. (b) of Section 36 (6) of the Act indicate that it was the intention of the Legislature to empower an appellate Court to deal with applications of this nature, not only in appeals from a decree which it is sought to re-open or modify under the provisions of the Bengal Money-lenders Act, but also in cases in which an appeal is pending in connexion with some order which may have been made in the proceedings taken for the execution of such a decree. The words on which the learned Counsel places particular reliance are as follows: 'any Court before which an appeal is pending in respect of a decree referred to in Clause (a) may.'

3. In my view, by using the words 'in respect of a decree' the Legislature merely intended to confer the powers under Section 36, Money-lenders Act, upon an appellate Court before which a decree of the nature referred to in Clause (a) of Sub-section (6) was being questioned or challenged by way of a direct appeal. In the present case we are not concerned with the validity or legality of the decree in an appeal against the decree itself as this decree has never been challenged in such an appeal since it was passed on 15th February 1917. The appeal which is actually pending before us cannot be said to be one in respect of the decree passed by the Ali-pore Court, but is merely in respect of certain orders made by the learned Additional Judge during the course of the execution proceedings. In this view of the case we must hold that we have no jurisdiction to deal with the application which has been filed under S.36, Bengal Money-lenders Act, but that it will be for the petitioners, if they so desire, to make this application in the Court of the learned District Judge of Alipore. Mr. Banerjee during the course of his argument raised certain questions as to the competency of this application, having regard to the fact that it had been filed only by four of the judgment-debtors. Possibly, when the matter comes before the learned District Judge, he may consider it desirable that all the judgment-debtors should be brought on the record, but this is a matter for him to decide at the appropriate time. Having regard to the considerations mentioned above, this application must be returned to the petitioners in order that it may be refiled in the proper Court. The parties will bear their own costs of this application. The two appeals, namely F. M. A. No. 197 of 1940 and F. M. A. No. 242 of 1940 will stand adjourned till 1st August 1941, in order to enable the petitioners to take the requisite steps in the Alipore Court.

Biswas, J.

4. I agree.


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