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Accowrie Mukherjee Vs. Sailendra Mohan Dey and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1941Cal495
AppellantAccowrie Mukherjee
RespondentSailendra Mohan Dey and anr.
Excerpt:
- .....implication to affect the rights of a decree-holder to recover interest after decree in a mortgage suit passed before the commencement of the act. the words 'shall... allow any interest' in section 31 indicate that the section was intended to operate on decrees to be passed after the act. the appellant is not, therefore, entitled to a declaration that respondent 1 is not entitled to any interest on the decretal amount.4. the second point for consideration is whether the preliminary and final decrees should be reopened and new decrees should be passed under the provisions of the act. it cannot be disputed that if the preliminary and final decrees in question are to be reopened, a new decree under the provisions of the act will have to be made. respondent 1 obtained the decrees in question.....
Judgment:

Nasim Ali, J.

1. This is an appeal by a debtor against the order of Sen J. dated 5th September 1940 in a proceeding under the Bengal Money-lenders Act, 1940. The facts which are not in dispute in this appeal are these : (1) On 28th June 1935, respondent 1 lent to the appellant a sum of Rs. 10,000 at an interest of 6 per cent. per annum with six monthly rests on a mortgage of premises No. 150/1A, Amherst Street, Calcutta. The date of repayment of the said mortgage debt was 28th June 1941. (2) In the said mortgage deed it was provided inter alia that if there should be any default in the payment of twelve monthly instalments of interest it should be optional for the mortgagee to institute a suit though the due date of repayment had not elapsed. (3) The appellant could not pay the interest regularly with the result that the mortgagee instituted a suit on 10th May 1939, for a mortgage decree for Rs. 11,920-11-9 in form No. 5A of Appendix D, Civil P.C. (4) The suit was not contested by the appellant. A preliminary decree was made in the suit on 16th June 1939. This decree was made final on 5th February 1940. (5) The mortgaged premises were ordered to be sold on 24th August 1940 in execution of the final decree. Thereafter the sale was adjourned to 7th September 1940. (6) On 1st September 1940, the Bengal Money-lenders Act, 1940, came into operation. (7) On 4th September 1940, the appellant presented an application on the original side of this Court under the said Act for (a) a declaration that the plaintiff is not entitled to any interest on the amount decreed in his favour in the preliminary and final decrees passed on 16th June 1939 and 5th February 1940, respectively; (b) an order that the said two preliminary and final decrees be reopened and, if necessary, a new decree or decrees in accordance with the provisions of the Act under the provisions of Section 36 be passed; and (c) an order that the appellant be given the liberty to pay the decretal amount by 20 annual instalments or by such other instalments as the Court may deem fit. (8) The application was rejected on 5th September 1940. (9) The mortgaged properties were sold on 7th September 1940 and were purchased by respondent 2. (10) The present appeal was filed in this Court by the debtor on 6th December 1940.

2. The first point for determination in this appeal is whether the appellant is liable to pay any interest on the decretal amount from the date of the preliminary decree in view of the provisions of Section 31, Bengal Money-lenders Act. This section is in these terms:

Notwithstanding anything contained in any law for the time being in force, no Court shall, in any decree passed in any suit to which this Act applies -

(a) if the loan to which the decree relates was advanced before the commencement of this Act, allow any interest on the decretal amount, or

(b) if the loan to which the decree relates was advanced after the commencement of this Act, allow any interest other than interest not exceeding six per centum per annum on the principal sum adjudged.

3. The contention of the appellant is that this section precludes respondent 1 from recovering any interest on the decretal amount inasmuch as by using the words 'decree passed' the Legislature intended that the provisions of the section would operate on decrees passed before the Act came into operation. Section 31 refers to 'decrees passed in any suit to which the Act applies,' i.e. suits pending on 1st January 1939 and suits instituted on or after the said date. The decrees passed in such suits may be decrees passed before the Act or after the Act. If Section 31 was intended to operate on decrees passed before the Act it would affect a vested right. Vested rights can only be taken away by express words or by necessary implication. As regards interest before decree included in a decree passed before the commencement of the Act the Legislature by using the words 'no borrower shall be deemed to have been liable to pay' in the previous section, namely, Section 30, has expressly affected the vested rights of the decree-holder. In Section 34 (b) (ii) the Legislature by using the words 'a judgment-debtor against whom a decree in such suit (suit in respect of unsecured loans) has been passed whether before or after the commencement of the Act' has expressly touched decrees passed before the Act. There is no indication either in Section 31 or in other provisions of the Act to show that the Legislature intended either expressly or by necessary implication to affect the rights of a decree-holder to recover interest after decree in a mortgage suit passed before the commencement of the Act. The words 'shall... allow any interest' in Section 31 indicate that the section was intended to operate on decrees to be passed after the Act. The appellant is not, therefore, entitled to a declaration that respondent 1 is not entitled to any interest on the decretal amount.

4. The second point for consideration is whether the preliminary and final decrees should be reopened and new decrees should be passed under the provisions of the Act. It cannot be disputed that if the preliminary and final decrees in question are to be reopened, a new decree under the provisions of the Act will have to be made. Respondent 1 obtained the decrees in question before the commencement of the Act. He had, therefore, a vested right before the Act came into operation. The reopening of such a decree would deprive him of a vested right. The question is whether this vested right of respondent 1 has been taken away by the Bengal Money-lenders Act either expressly or by necessary implication. The contention of the appellant is that the decrees in question can be reopened by the Court in exercise of the powers conferred by Sub-section (1) of Section 36. Sub-section (1) does not expressly authorize the Court to reopen decrees. The argument on behalf of the appellant is that the word 'transaction,' in Sub-section (1) (a) of Section 36 includes a decree. The word 'transaction,' however, has not been defined in the Act. Sub-section (1) empowers the Court to exercise certain powers. Where no decree has been passed the question of reopening a decree in the exercise of the powers under Sub-section (1) would not arise. Where, however, decrees have been passed already and the Court while exercising all or any of its powers under Sub-section (1) finds that all or any of its powers cannot be exercised without reopening the decree, the Court can reopen it. The power of reopening the decree flows from and is dependent on powers which the Court has been authorised to exercise under Clauses (a) to (e) of Sub-section (1) of Section 36. It is, therefore, restricted to cases where the question of the exercise of all or any of these powers arises. Even if the word 'transaction' in Section 36 (1) (a) is interpreted to include a decree that power can be exercised only when the decree is to be reopened and accounts between the parties are to be taken. I cannot read the word 'or' for the word 'and' in Section 36 (1) (a). As there is no question of taking accounts in this case the Court has no power to reopen the decrees in the present case under Section 36 (1) (a). The power of the Court to order payment by instalments and thereby to give relief to the debtor under Section 36 (2) (d) cannot be invoked for reopening the decree under Section 36 (1) (a) as that power can be exercised only after the decree has been reopened and not before. I, therefore, hold that the decrees in the present case cannot be reopened. The question of passing a new decree, or of any right of respondent 2 being affected does not therefore arise in this case.

5. The last point for consideration is whether without reopening the decree an order for payment of the decretal amount by instalments can be made in this case. By Section 34 (1) (a) the Court has been empowered to grant instalments in suits in respect of mortgage loans at the time of the passing of the preliminary decree after the commencement of the Act. As the decrees in the present case were passed before the Act and cannot be reopened under the Act the provisions of this section are not attracted to this case. The provisions of Section 34 (1) (b) (ii) do not apply to this case as the decrees are mortgage decrees. There is no other pro-(vision in the Act under which without reopening the decree an order for payment of the decretal debt by instalments can be made. The appellant cannot, therefore, be given the liberty to pay the decretal amount by instalments. For the reasons given above I dismiss this appeal with costs. The order for stay is dissolved.

Derbyshire, C.J.

6. I agree.

Panckridge, J.

7. I agree.


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