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Noni Lal Chowdhury Vs. Lalit Mohan Mukherjee - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1947Cal97
AppellantNoni Lal Chowdhury
RespondentLalit Mohan Mukherjee
Cases ReferredSatyanarayan Banerji v. Radhanath Das
Excerpt:
- .....has now brought a suit for re-opening the small cause court decree under section 36, bengal money-lenders act and the suit has been filed in the court of the munsif at alipore and not in the court of small causes at sealdah where the decree on the loan was recovered. the munsif of alipore has returned the plaint on the ground that he has no jurisdiction to entertain the suit and that the proper forum of such suit would be the court which originally made the decree. this order was affirmed on appeal by the court of the first additional subordinate judge, 24 parganas and it is against this order that the present rule has been obtained.2. now, it has been held by a division bench of this court in satyanarayan banerji v. radhanath das : air1942cal69 that when a decree has already been.....
Judgment:

B.K. Mukherjea, J.

1. The petitioner before us was a defendant in a suit for recovery of money due on a promissory note which was brought against him by the predecessor in interest of the opposite party in the Court of Small Causes at Sealdah. A contested decree was obtained in that suit by the opposite party and it was transferred for execution to the Court of the first Munsif at Alipore, where certain immovable properties belonging to the judgment-debtor were attached and put up to sale and were purchased by the decree-holder. The petitioner has now brought a suit for re-opening the Small Cause Court decree under Section 36, Bengal Money-Lenders Act and the suit has been filed in the Court of the Munsif at Alipore and not in the Court of Small Causes at Sealdah where the decree on the loan was recovered. The Munsif of Alipore has returned the plaint on the ground that he has no jurisdiction to entertain the suit and that the proper forum of such suit would be the Court which originally made the decree. This order was affirmed on appeal by the Court of the first Additional Subordinate Judge, 24 Parganas and it is against this order that the present rule has been obtained.

2. Now, it has been held by a Division Bench of this Court in Satyanarayan Banerji v. Radhanath Das : AIR1942Cal69 that when a decree has already been passed, a suit to obtain relief under Section 36, Bengal Money-Lenders Act can be brought only in the Court which passed the decree at the suit of the creditor for recovery of the loan, and in no other Court. The learned Advocate for the petitioner has contended before us that the principle enunciated in that decision is not applicable to a Small Cause Court decree. The contentions put forward are of a two-fold character. In the first place he has argued that such a suit is exempt from the cognizance of a Small Cause Court under Articles 4, 11, 21 and 23 of Schedule 2 to the Provincial Small Cause Courts Act. The other ground taken is that as a Small Causes Court Judge is not competent to order restoration of any immovable property that the decree-holder has taken possession of in execution of the decree under Section 86(2)(c), Bengal Money Lenders Act, such a suit could not be filed in a Court of Small Causes.

3. So far as the first ground is concerned, we are definitely of opinion that a suit for obtaining relief under Section 36, Bengal Money-Lenders Act, is not a suit for possession of immovable property or for determination or enforcement of any right to or interest in such property as contemplated by Articles 4 and 11 of Schedule 2 to the Provincial Small Cause Courts Act. It is not a suit also to set aside a sale within the meaning of Article 21. We are further of opinion that it is not a suit to which the provisions of Article 23 are attracted. Reopening of a decree under Section 36, Bengal Money-Lenders Act, is a new species of relief which has been introduced by the Money-Lenders Act. It is not strictly speaking correct to say that it is the same thing as setting aside a decree on grounds of fraud or irregularity or altering a decision on grounds of any defect or error in it. The entire procedure is regulated by the provisions of the Act itself and there is nothing in the Act which lends countenance to the view that Small Cause Court Judges are not competent to exercise powers given by the Act. If the contention of the learned Advocate for the petitioner is accepted, the result in the present case would be, that in case the old decree is re-opened and a new one made under Section 36, Money-Lenders Act, the new decree which also would be a decree in a Small Cause Court suit would be passed by a Court other than a Court of Small Causes, a thing which is prohibited by Section 16, Provincial Small Cause Courts Act.

4. So far as the second point is concerned, it is perfectly true that the Court in re-opening a decree has got to order restoration to the judgment-debtor of any of his properties which has been acquired by the decree-holder in execution of the re-opened decree, but this is a supplementary order consequential on the re-opening of the decree, which is provided for by the section itself. There is nothing in the Provincial Small Cause Courts Act to prevent a Small Cause Court Judge from making an order of this description. It certainly does not involve determination of interest in immovable property nor does the suit become one for recovery of possession of any such property. Whether this portion of the decree can be executed by a Small Cause Court Judge or not is a different matter altogether. It is conceded by Mr. Banerjee for the opposite party that if any difficulty arises on this score it would be for the petitioner to get the decree transferred for execution to any other Court which is able under the law to order restoration of immovable property.

5. The result is that we find that sufficient reasons have not been shown for our interference, with the order made by the Court below. The rule is therefore discharged with costs - the, hearing fee is assessed at 2 gold mohurs.

Sharpe, J.

I agree.


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