Skip to content


Sm. Kiranbala Chowdhury Vs. Hiralal Das and anr. - Court Judgment

LegalCrystal Citation
Subject Civil
CourtKolkata
Decided On
Reported inAIR1941Cal492
AppellantSm. Kiranbala Chowdhury
RespondentHiralal Das and anr.
Excerpt:
- .....act, 1940, which are set forth in detail in the notice of motion. it is admitted by the decree-holder that the petitioner is entitled to have the decree reopened as against the decree-holder and that the rate of interest should be calculated at 8 per cent. per annum simple interest instead of at the rate of 9 per cent. compound which was the rate provided in the two mortgage deeds. the main point in dispute, however, is whether or not the petitioner is entitled to have the sale set aside, which was held on 20th december 1939. at that sale the mortgaged property was purchased not by the decree-holder but by two other persons, namely butto krishna das and ganesh chandra das, who, as required by the conditions of sale, deposited 25 per cent. of the purchase money in the office of.....
Judgment:
ORDER

Edgley, J.

1. In this case the petitioner has applied for certain reliefs under the provisions of the Bengal Money-lenders Act, 1940, which are set forth in detail in the notice of motion. It is admitted by the decree-holder that the petitioner is entitled to have the decree reopened as against the decree-holder and that the rate of interest should be calculated at 8 per cent. per annum simple interest instead of at the rate of 9 per cent. compound which was the rate provided in the two mortgage deeds. The main point in dispute, however, is whether or not the petitioner is entitled to have the sale set aside, which was held on 20th December 1939. At that sale the mortgaged property was purchased not by the decree-holder but by two other persons, namely Butto Krishna Das and Ganesh Chandra Das, who, as required by the conditions of sale, deposited 25 per cent. of the purchase money in the office of the Registrar. Under Section 36, Money-lenders Act, it is clear that the transaction, with which we are now concerned, may be reopened as between the petitioner and the decree-holder. It is, however, provided in Section 36 (2) that:

If in exercise of the powers conferred by Sub-section (1) the Court reopens a decree, the Court .... (b) shall not do anything which affects any right acquired bona fide by any person other than the decree-holder in consequence of the execution of the reopened decree.

2. The main point, therefore, for consideration in this matter is whether the purchasers acquired bona fide any right during, the course of the execution proceedings. Having regard to the conditions of sale, read in the light of Rule 38 of Ch. 27 of the rules of this Court, there can be no doubt in my view, that the purchasers had at any rate acquired a right to apply to the Court with a view to the completion of the sale provided that they were prepared to accept the title. Admittedly, however, before the expiry of the period during which they had this right, the petitioner in this case had obtained an injunction against them, which restrained them from taking any further steps in connexion with the execution proceedings. It follows, therefore, that the right which they had acquired by reason of their purchase was suspended while this injunction was in force. I am informed that this injunction was removed a few days ago. The right to which reference is made in Section 36 (2) (b), Bengal Moneylenders Act, is not necessarily a right in respect of the property which was sold at the Registrar's sale. In my view, the language used is sufficiently wide to include the right which the purchasers had to apply to have the sale completed. This right would of course disappear if the sale were now set aside, and in these circumstances I am of opinion that the position of the purchasers is safeguarded by Section 36 12) (b), Money-lenders Act.

3. I do not think any question can arise in the present case with regard to the payment of instalments, as admittedly the whole of the purchase money is available for the purpose of meeting the dues of the decree-holder, and in these circumstances the petitioner would not benefit in any way by an order directing that instalments should be paid. The result is that the petitioner will be entitled to a modified decree as against the decree-holder only and to the reliefs which he seeks in the first three prayers in the notice of motion. The petition is dismissed in respect of prayers (4) and (5), and he will be entitled to a new decree with interest calculated at 8 per cent. simple up to date. Having regard to the language of Section 36 (2) (a) the decree-holder will be entitled to his costs in respect of this application and in respect of the reopened decree. Further, the purchasers will be entitled to recover their costs against the petitioner.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //