1. (F. M. A. No. 200 of 1941 with application). -This appeal is directed against an Order of the Subordinate Judge of Birbhum dated 10th May 1941, rejecting an application of the appellant for re-opening of a decree under section 36, Bengal Money-Lenders Act. It is conceded on behalf of the appellant that the appeal itself is incompetent but there is an application in the alternative under section 116, Civil P.C. and we are asked to exercise our powers in revision under that section. The appellant is the common manager of the Bagchis of Jamshedpur who were putnidars under the respondent the Raja of Nashipur. The putni rent for the year 1341 B. Section being in arrears, the respondent started proceedings under Kegn. 8 of 1819 on 1st Baisakh 1342 corresponding to 15th April 1935. The claim for putni rent was laid at Rs. 27,698 annas odd. On 15th May 1935, a petition was filed by the common manager of the putnidars before the Collector stating that he had paid Rs. 1821 annas odd to the zamindar in part payment of the rent due and on his request the latter agreed to strike out the Austum proceedings. He acknowledged the liability of the putnidars to pay the balance of the putni rent amounting to Rs. 25,874-10-1 and promised to pay that amount within the month of Sraban 1342 with interest at Re. 1-8-0 per cent, per month upon the loan. As a matter of fact no money was paid and the putni itself was sold under Regn. 8 of 1819 for arrears of a subsequent period. On 15th May 1937, the Raja of Nashipur instituted a money suit against the putnidars for recovery of the amount mentioned aforesaid and a decree was obtained on compromise on 20th February 1939. It is this decree which is sought to be re-opened by the judgment-debtor under section 36, Bengal Money-Lenders Act.
2. The only question in controversy is whether the decree was in respect of a loan which could attract the operation of the provisions of the Bengal Money-Lenders Act. Dr. Basak for the appellant has conceded that rent due by a putnidar to a zamindar could not come within the definition of loan as contained in section 2 (12), Bengal Money-Lenders Act, even though it carried interest either under the statute or under an agreement between the parties. His contention however is that in this case it became a loan by reason of subsequent agreement between the parties which was evidenced by the petition filed before the Collector on 15th May 1938. In this petition, as I have said already, the putnidar promised to pay interest in excess of what was payable under law. We do not think that we can ac eept this contention as sound. It may be conceded that even when a debt does not originally come within the definition of loan as given in the Bengal Money Lenders Act yet if a bond or security is subsequently taken in respect of it it may under certain circumstances amount to a loan. This proposition was laid down in Kunja Behari Pal v. Satyendra Nath Das : AIR1941Cal689 . and was approved of later by another Division Bench of this Court in Fateh Chand Mahesri v. Akimuddin Chowdhury : AIR1943Cal108 . To constitute a loan there must be an element of advance either actual or notional and in each case we have got to be satisfied from the circumstances that the transaction in fact involved an advance. The circumstances of this case, however, show conclusively that there was no idea of any advance. There was no bond or security taken in respect of the rents due and it is not that a new obligation was created in substitution of the old. The liability still remains a liability for rent and we are unable to hold that the landlord gave up his rights under the law in return for a personal undertaking given by the common manager of the putnidars. The fact that there was an undertaking to pay interest at the rate of Re. 1-8-0 does not in our opinion really affect the situation. By itself it does not show that it was treated as a loan. Apparently the landlord had to incur certain expenses in connexion with the Austum proceedings and the putni-dars were given further time to pay the rent. In these circumstances there is nothing unnatural that the putnidars agreed to pay rent slightly in excess of what they were bound to pay under law.
3. On a consideration of these facts and circumstances, we are of opinion that the Court below was right in the view that the liability of the putnidars for the putni rent could not amount to a loan within the meaning of the Bengal Money-Lenders Act and consequently the application under section 36 was rightly dismissed. The application therefore must be dis-charged. The result is that the appeal and the application are dismissed. There will be no Order for costs either in the appeal or in the application.
4. F. M. A. No. 20 of 1942-This appeal is on behalf of the judgment-debtor and it arises out of a proceeding to set aside an execution sale under Order 21, Rule 90, Civil P.C. The suit brought by the respondent was for recovery of putni rent due in respect of putni held by the judgment-debtor under him and as the putni was already sold under Regn. 8 of 1819 at the date of the institution of the suit it was registered in the money file. A decree was obtained on the basis of a compromise dated 20th February 1989. The decree-holder put the decree into execution in Money Execution case no. 35 of 1940 and on 30th September 1940, the properties in dispute comprised in six lots were sold. They were purchased by the decree-holder himself for sums aggregating to Rs. 1900. On 5th November 1940, an application was presented by the common manager of the judgment-debtors under Order 21, Rule 90, Civil P.C. attacking the sale on various grounds of irregularity which were said to result in substantial loss to the petitioners. The Subordinate Judge by his Order dated 1st December 1941, dismissed this application and it is against this Order that the present appeal has been filed.
5. On hearing the learned advocates on both sides it appears to us that there were certain irregularities in connexion with publishing and conducting the sale. To begin with the properties were not attached at all before they were put up for sale. The decree-holder relied for this purpose upon a statement in the compromise petition upon which the decree was based that the properties would be regarded as under attachment on the basis of the sole-nama. It goes without saying that unless attachment is effected in fact a statement by the parties that the property remains attached does not serve the purpose of law at all. In the second place another irregularity in the procedure appears on the face of the record. On 24th June 1940, notice was issued by the Court under Order 21, Rule 66, Civil P.C. fixing 13th July following for return and order. On 13th July the then common manager of the judgment.debtors did put in a petition of objection stating inter alia that the valuation of the properties as given in the sale proclamation was grossly inadequate. The petition of objection set out the details of valuation with regard to each item of property and the case of the petitioner was that at the lowest computation the properties could not be valued at less than Rs. 60,000. On this petition a miscellaneous case being case no. 62 of 1940 was started; strangely however before this miscellaneous case was disposed of, the sale was held and the properties were knocked down for Rs. 1900 only. It is stated by Mr. Banerji who appears for the respondent that the common manager who filed the petition for objection on 13th July 1910 was subsequently discharged and another common manager was appointed and it may be that the subsequent manager did not proceed with the application. We do not find however that the application was dismissed for non-prosecution. The miscellaneous case remained on the file and was not disposed of till long after the sale was held.
6. The question for our consideration is whether by reason of these irregularities the properties were sold at an inadequate price. The evidence on this point seems to us to be clearly one-sided. The annual net profits of the properties which are darpatni tenures created under the putnidars held by the judgment-debtors under the Raja of Nashi-pur were, according to their evidence, in the neighbourhood of Rs. 4000 and taking the price to be 15 times the net profit it was contended that the valuation of these properties would be Rs. 60,000. It is true that there were certain rent charges upon these properties and there was rent due by the darputnidars to the putnidars for a period of about four years. This, however, was not set out in the sale proclamation and it appears that the subsequent purchaser of the putni has instituted a suit against the darputnidar. claiming a large sum of money. The judgment-debtors have put in their defence in that suit and it is still debatable as to how much was actually due as rent. We do not think that in the circumstances the sum of Rs. 1900 which the properties actually fetched was an adequate price. As a matter of fact, when the rent charges were not set out in the sale proclamation it could not be said that the intending purchasers were scared away in any way by the description of the properties as given in the sale proclamation. There was no other bidder except the decree-holder and in the circumstances we are of the opinion that the sale is liable to be set aside.
7. The result is that we allow this appeal and set aside the Order of the Subordinate Judge. It is perfectly true that the judgment-debtors had been adopting dilatory tactics throughout and they were trying to put off payment of their just dues on one pretext or other. Their conduct does not seem to us in any way to be proper but nevertheless we cannot shut our eyes to the irregularities which appear clear on the face of the record. The result is that we set aside the sale and we direct that the records may be sent down immediately with a direction that the executing Court will take up the matter with as much expedition as possible and put up the properties to sale as quickly as possible. There will be no Order as to costs in this appeal. We are informed that the Subordinate Judge who is at present at Suri happens to be a relation of some of the judgment-debtors. In these circumstances we direct that the records of this case be sent to the District Judge of Birbhum with a direction that the sale be held by him as early as possible.