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Hub Lal Show Vs. Prem Raj Lala - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. No. 1150 of 1951
Judge
Reported inAIR1953Cal94
ActsDebt Law; ;Bengal Money-lenders Act, 1940 - Section 38 and 38(3); ;Code of Civil Procedure (CPC) , 1908 - Section 115
AppellantHub Lal Show
RespondentPrem Raj Lala
Appellant AdvocateHemendra Kr. Das and ;Sambhunath Banerji, Advs.
Respondent AdvocateRanjit Kr. Banerjee and ;Ramesh Ch. Banerjee, Advs.
Cases ReferredAdaikappa Chetiar v. Chandrasekhar Thevar
Excerpt:
- .....court of appeal below was wrong in allowing the appeal.11. after we have heard the arguments inthe appeal, an application was filed on behalfof the borrower for exercise of our revisionaljurisdiction under the provisions of section 115of the code of civil procedure. in the peculiarcircumstances of the case we have condonedthe delay in filing the application. notice ofthe application was given on the other side andwe have heard the learned advocate in thismatter also. we are of opinion that the subordinate judge clearly refused to exercise jurisdiction on a wrong view of law that theapplication was not maintainable. this is aproper case where we should interfere withthat order under section 115 of the code of!civil procedure. 12. accordingly, we set aside the order passed by the learned.....
Judgment:

K.C. Das Gupta, J.

1. The respondent Premraj Lala filed an application under Section 38 of the Bengal Moneylenders Act in the court of the Subordinate Judge, Howrah. In that application it was stated that the original loan of Rs. 500/- with all interest accrued thereon at the statutory rate had been fully satisfied from the income. The prayer, however, was that an account be taken of the loan described and a declaration of the amount, if due, if any, be made upon the loan. The present appellant having raised an objection to the maintainability of the application the learned Subordinate Judge decided that the applicant was not entitled to maintain the petition in view of his case made in paragraph 7 of the petition that the loan had been satisfied. He accordingly dismissed the case as not maintainable. Against this Premraj Lala, the applicant, preferred an appeal to the District Judge, Howrah. The learned District Judge was of opinion that the application was maintainable and in that view he allowed the appeal and remanded the case to the trial court for disposal on merits according to law.

2. On behalf of the appellant two points have been raised. First, it was contended that the learned District Judge was wrong in his view of law that an application was maintainable. Secondly, it is contended that in any case, an appeal did not lie against the order passed by the learned Subordinate Judge, the District Judge acted without jurisdiction in hearing and allowing the appeal.

3. On the first point, I am clearly of opinion that the appellant's contention cannot be accepted. Section 38 provides that any borrower may make an application to the proper court which is indicated in the section itself for taking accounts and for declaring the amount due to the lender. Such application has to be in the prescribed form and accompanied by a fee. It provides that thereafter a notice shall be issued by the Court on the lender and after this the Court shall take an account of the transactions and shall

''declare the amounts, if any, (a) payable and already due, (b) payable but not yet due by the borrower to the lender whether as principal or interest or both'.

It was argued by Mr. Hemendra Kumar Das on behalf of the appellant that the scheme of the law here clearly is that the Court can give a declaration only of some amount which is payable and already due or which is payable but not yet due and that it cannot declare that no amount is due. The scheme of the law, as I understand it, is that an opportunity should be given to the borrower to have his accounts settled and if on such accounting something is found due, that is to be declared. It nothing is found due, that fact is also to be declared. The provision in Sub-section (1) that the application is 'for taking accounts and for declaring the amount due to the lender' clearly includes, in my judgment, the provision of declaring that nothing is due. That this is the scheme is also clear from the use of the words 'if any' in Sub-section 2. Reading the Section 38 as a whole, and giving the words used their plain meaning to understand the intention of the Legislature, I am of opinion that the intention was that on such an application being made the Court will have to take accounts and then declare either that no amount is due, or the sum that is due. To take any other view will be to defeat the scheme of the law without any justification for the same in the words used by the Legislature.

4. It is important to mention in this connection that in the application that was actually made, though in the body of the application a statement was made as a submission by the petitioner that the loan with interest had been satisfied, the prayer was for an account to be taken and for 'a declaration of the amount dua, if any'.

5. My conclusion, therefore, is that the District Judge rightly held that the application was maintainable.

6. It has, however, been contended that in any case the appeal should have been dismissed as incompetent. Section 38 has made some provision as regards appeals. In Sub-section 3 of the section provision is made first that a proceeding under the section shall be deemed to be a suit for the purpose of Section 11 of the Code of Civil Procedure. As the proceedings shall be deemed to be a suit for this limited purpose only, all the consequences that would have followed if the proceeding was a suit for all purpose do not follow. The Appeal is dealt with in the subsequent clause of the sub-section. It is in these words: 'A declaration under this section shall be subject to appeal, if any, as if it were a decree of the Court and every decision shall be subject to appeal to the High Court in the same manner as a decree passed in appeal.'

7. It has been contended by Mr. Das that where the Court refused to make a declaration in the view that the application is not maintainable, that order of refusal is not appealable. We are aware of the decisions in which, though under Order XLIII, Rule 1, clauses r and s an appeal lies against an order under Rules 2, 4 and 6 only of Order XXXIX of the Code of Civil Procedure, the courts have held that a refusal to make an order under those sections will also be subject to appeal. We find it difficult, however, to apply the reasoning on which such refusal to pass an order was held to be appealable, to the refusal to make a declaration. If the words in this Sub-section 3 had been that an order under this section shall be subject to appeal, that reasoning would have been available. When the Legislature used the words 'a declaration under this section shall be suject to appeal', it clearly contemplated the situation that a declaration has been made. Whether the declaration was that no amount was due or some amount was due did not matter but so long-as the declaration was made an appeal was. provided for. Where no declaration has been made, there is no provision for an appeal.

8. Nor can it be argued that an appeal lies because the ordinary civil courts deal with the matter. As was laid down by their Lordships of the Privy Council in -- 'Adaikappa Chetiar v. Chandrasekhar Thevar', 74 Ind App 264 (PC) where a legal right is in dispute and the ordinary courts of the country are seized of such dispute, the Courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies, if authorised by such rules, notwithstanding that the legal right claimed arises under a special statute which does not in terms confer a right of appeal. In the present case, the statute gives an appeal against a declaration. It does not give an appeal against any other orders under Section 38. There is no scope for holding that the order amounts to a decree. Quite apart, therefore, from the fact that when the statute gives an appeal only against a declaration, it should be held that the statute by implication says that no appeal will lie against any other order under the section, no appeal will lie under the provisions of the Civil Procedure Code from an order refusing to make a declaration.

9. In my judgment, it is impossible to escape the conclusion that refusal to make a declaration is not subject to appeal.

10. It must, therefore, be held that the court of appeal below was wrong in allowing the appeal.

11. After we have heard the arguments inthe appeal, an application was filed on behalfof the borrower for exercise of our revisionaljurisdiction under the provisions of Section 115of the Code of Civil Procedure. In the peculiarcircumstances of the case we have condonedthe delay in filing the application. Notice ofthe application was given on the other side andwe have heard the learned Advocate in thismatter also. We are of opinion that the Subordinate Judge clearly refused to exercise jurisdiction on a wrong view of law that theapplication was not maintainable. This is aproper case where we should interfere withthat order under section 115 of the Code of!Civil Procedure.

12. Accordingly, we set aside the order passed by the learned Subordinate Judge and direct that the application be dealt with by him in accordance with law. The parties will bear their own costs.

Bachawat, J.

13. I agree.


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