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Province of West Bengal and anr. Vs. Bholanath Sen and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Commercial
CourtKolkata
Decided On
Case NumberA.F.O.O. No. 6 of 1947
Judge
Reported inAIR1950Cal174,54CWN322
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47 and 60 - Order 21, Rule 58; ;Bengal Money-lenders Act, 1940 - Section 36; ;Indian Independence (Right, Property and Liabilities) Order, 1947 - Sections 3, 7, 7(2) and 12; ;Debt Law
AppellantProvince of West Bengal and anr.
RespondentBholanath Sen and anr.
Appellant AdvocateChandra Sekhar Sen, ;Jagneswar Majumdar and ;Md. Asir, Advs.
Respondent AdvocateSiti Kanta Lahiri, Adv.
DispositionAppeal allowed
Cases ReferredChitrambani Ltd. v. Kisava
Excerpt:
- .....court on 20th february 1940. the bengal money-lenders act having come into force, the judgment-debtor bholanath sen instituted proceedings under the said act for reopening of the said mortgage decree and for incidental reliefs. on 26th february 1944 the learned subordinate judge directed the decree to be reopened and a new preliminary decree for rs. 43.000 was passed, but no installments were granted. both jogendra and bholanath appealed to this court. the appeals were disposed of on 26th april 1944 and this court directed a preliminary decree to be passed for rs. 28,826 which was made payable in 10 annual installments commencing with 3rd january 1945.4. meanwhile on 25th august 1942 the province of bengal executed the decree for es. 2484-12-0 passed in t. s. no. 69 of 1939 against.....
Judgment:

G.N. Das, J.

1. This is an appeal by the Province of Bengal against an order dated 23rd September 1946, passed by Mr. J. P. Mukherjee, learned Subordinate Judge, 2nd Additional Court, District 24 Parganas, dismissing an execution case started by appellant.

2. The facts are as follows : Bholanath Sen, predecessor-in-interest of the respondents and Tulsimanjuri Dasi filed a suit in forma pauperis, being Title Suit No. 69 of 1939 against Rajlakshmi Dasi and Nabani Gopal Banerjee. On 31st June 1941, the suit was dismissed and under the pro-visions of Order 33, Rule 11, Civil P. C., a decree for payment of Rs. 2484-12-0 being the court-fees which would have been payable to the Government, had the plaintiff not been permitted to sue as paupers, was passed against the plaintiffs in favour of the Government.

3. In 1900 the said Bholanath Sen had borrowed a sum of Rs. 8000 from Jogendranath Das on a mortgage. In 1911, Jogendra sued to enforce the mortgage. The Court, however, pass-ed a money decree in favour of Jogendra. Jogendra preferred an appeal to this Court. On 5th June 1917, this Court allowed the appeal and passed a preliminary mortgage decree. Bholanath Sen preferred an appeal to His Majesty in Council, which was numbered P. C. Appeal No. 126 of 1917. Bholanath Sen deposited 3 1/2 p. c. G. P. Notes of the face value of Rs. 4000 as security for cost of the said Jogendranath Das, in the said P. C. Appeal. The P. C. Appeal was dismissed with costs. On 23rd November 1918, a final mortgage decree for Rs. 43,000 odd was passed in favour of Jogendra. The decree was executed and the mortgaged properties were sold on 6th October 1936 and purchased by the decree-holder Jogendra for Rs. 79,000 the dues of the mortgagee being about Rs. 85,000 on that date. The sale was confirmed on 29th May 1939. The decree-holder auction purchaser took possession through Court on 20th February 1940. The Bengal Money-lenders Act having come into force, the judgment-debtor Bholanath Sen instituted proceedings under the said Act for reopening of the said mortgage decree and for incidental reliefs. On 26th February 1944 the learned Subordinate Judge directed the decree to be reopened and a new preliminary decree for Rs. 43.000 was passed, but no installments were granted. Both Jogendra and Bholanath appealed to this Court. The appeals were disposed of on 26th April 1944 and this Court directed a preliminary decree to be passed for Rs. 28,826 which was made payable in 10 annual installments commencing with 3rd January 1945.

4. Meanwhile on 25th August 1942 the Province of Bengal executed the decree for Es. 2484-12-0 passed in T. S. No. 69 of 1939 against Bholanath Sen and Tulsi Manjuri Dasi and prayed for realisation of the same by the attachment of 3 1/2 p. c. G. P. Notes for Rs. 4000 deposited by Bholanath Sen as security for costs of the respondent Jogendranath Das in P. C. Appeal No. 126 of 1917. This was registered as Title Execution Case No. 39 of 1942. On 15th March 1944, Ajit Nath Das one of the respondents in P. C. Appeal No. 126 of 1927 filed an application under Order 21, Rr. 52 and 58 Civil P. C., for releasing the said G. P. Notes from attachment by the Province of Bengal. This gave rise to Miscellaneous Case No. 11 of 1944. The miscellaneous case was dismissed on 2nd August 1944. On the ground that as the first installment had not fallen due, the claimant had no lien on the said 3 1/2 p. c. G. P. Notes and the latter could not be released from attachment. No suit has been filed by the claimant under Order 21, Rule 68, Civil P. C.

5. On 6th March 1946, the judgment-debtor Bholanath Sen filed a petition of objection under Section 47 and prayed that the G. P. Notes be released from attachment and the execution case be dismissed. This was registered as Miscellaneous Case No. 12 of 1946. The learned Subordinate Judge by his order dated 23rd September 1946 allowed the miscellaneous case on the following: grounds : (1) The mortgagee respondents in the said P. C. Appeal have a lien on the said G. P. Notes. (2) The said G. P. Notes were earmarked for a certain purpose viz., the payment of the cost of the said P. C. Appeal and cannot be utilised for any other purpose unless the said costs are paid. (3) The order in the claim case was made on the footing that the first installment bad not then become due and is not conclusive. On 2nd January 1947, the decree-holder Province of Bengal preferred this appeal against the said order.

6. Mr. Sen, the learned Senior Government Pleader appearing for the appellant pressed the following points: (1) Even assuming that the lieu of the respondents in the said P. C. Appeal subsisted, there was no bar to an attachment of the said G. P. Notes. (2) The lieu in fact does not subsist, because the P. C. costs are now incorporated in the reopened decree which created a charge only on the mortgage properties. (3) The order passed in the claim case is binding on the judgment-debtor.

7. Mr. Siti Kanta Lahiri for the respondents raised three preliminary objections : (1) The petition filed by the respondent judgment-debtor really came under Order 21, Rule 58, Civil P. C. and no appeal lay against the order allowing the same. (2) The appeal cannot proceed in the absence of Tulsimanjuri, the co-judgment debtor. (3) The decree under execution cannot be now executed by the Province of Bengal which has ceased to exist since the appointed day (15th August 1947).

8. The first objection must be overruled as the objection to attachment is at the instance of the judgment-debtor and not of a third party. The case comes within s. 47 vide Mulla's Civil Procedure Code, Edn. 11, p. 188.

9. The second objection is also without any substance. The G. P. Notes sought to be attached were deposited by Bholanath Sen alone. The relief is claimed against him and on his death his successors-in-interest who are parties to the appeal as respondents.

10. The third objection requires careful consideration. Section 8 (1), Indian Independence Act, 1947 provides that as from the appointed day. (a) the Province of Bengal, as constituted under the Government of India Act, 1935, shall cease to exist, and (b) there shall be constituted in lieu thereof two new Provinces, to be known respectively as East Bengal and West Bengal.

11. Section 3 of the Indian Independence (Right, Property and Liabilities) Order, 1947 provides that the initial distribution of rights, property and liabilities would be governed by the provisions of the order subject to any agreement between the two Dominions of India and Pakistan, or the provinces concerned, and to any award of the Arbitral Tribunal.

12. Sections 4, 5 and 6 relate to the distribution of land, goods, coins, banknotes and currency notes.

13. Section 7 deals with distribution of all property other than land, goods, coins, bank, notes and currency notes.

14. The effect of Section 7 (2) is to vest in His Majesty for the joint purposes of the two Dominions of East Bengal and West Bengal all such property which was held for the purpose of the Province of Bengal. It is admitted on both sides that the decree which related to court fees payable in respect of a suit in Alipur, Bengal was held for the purpose of the Province of Bengal; as such, the decree automatically vested, as from the appointed date, in His Majesty for the Province of East and West Bengal

15. By Section 12 (2) of the Order, therefore, the Provinces of East and West Bengal would be automatically substituted for the Province of Bengal in this appeal which was pending on the appointed day and the appeal shall continue as| such.

16. The above result is, by reason of Section 3 of the Order, subject to any agreement between the two Dominions or Provinces or any award of the Arbitral Tribunal.

17. No such agreement has been placed before us and we are not aware of the terms of such an agreement, if any.

18. As the interest in the decree has been automatically transferred to the Provinces of East Bengal and West Bengal, both the Provinces are to be deemed to be appellant. The learned Senior Government Pleader, for the Province of West Bengal represents one of the appellants viz., the Province of West Bengal. We gave time to the Province of East Bengal to appear. Mr. Asir has appeared for the Province of East Bengal and represents the latter. Mr. Asir has accepted the position taken by the Province of West Bengal.

19. We shall now proceed to deal with the contentions raised on behalf of the appellants.

20. The security deposit was made for the purpose of enabling the respondents to England to realise the cost which may be awarded to the latter in case the appeal fails. Even if the appeal fails, the costs decreed may or may not exhaust the deposit. In the latter case, the surplus is available for the appellant (depositor).

21. If the appeal succeeds, the whole of the deposit remains at the disposal of the depositor.

22. Section 60, Civil P. C., enumerates the properties liable to attachment, namely lands ......; all other saleable property, moveable or immoveable, of the judgment, debtor, over which or the profits of which, he has a disposing power which he may exercise for his benefit, whether the same be held in the name of the judgment-debtor or by another person in trust for him or on his behalf.

23. The enumeration is subject to certain proviso which are not applicable in the present case.

24. The effect of the security deposit as stated already, is not to take away entirely the disposing power of the depositor. In spite of the fact that the deposit is ear-marked for a specific power, the depositor still retains a disposing power which he may exercise for his benefit. The extent of the power is dependent on certain contingencies. The fact that the G P. Notes deposited are endorsed in the name of an officer of the Court did not affect the question. The word property is used in a wide sense and does not mean only proprietorship but includes any right or power in respect of the same. The effect of the attachment is merely to prevent private alienation and to subject the attached property to claims enforceable under the attachment.

25. In my opinion, the security deposit is liable to attachment in execution of a decree.

26. This view is supported by the decision in Shantanand v. Basudevanand, : AIR1930All225 .

27. The view is also supported by the decision in Jagadish Narain v. Mt. Ramsakal Koer, 8 Pat. 478 : (A. I. R. (16) 1929 Pat 97). In that case, money was deposited by an insolvent as security for costs of an appeal to His Majesty in Council, The deposit was attached by a creditor. It was held that the attachment was valid, the only effect is that it is subject to the result of the appeal.

28. Mr. Lahiri relied on the case of Ramiah v. Gopala Aiyar, 41 Mad. 1053 : (A.I.R. (6) 1919 Mad. 607). In that case a debtor in order to prevent his arrest by the creditor, deposited the claim of the plaintiff. The money so deposited was attached by another person who had obtained a decree against the depositor. The latter was adjudicated an insolvent. It was held that the money deposited was charged with the dues of the plaintiff but the attachment effected was good, the rights of the attaching creditor and the official receiver were however subject to the said charge. Mr. Lahiri also relied on the case of Gauranga Behari v. Manindra Nath : AIR1933Cal625 . This case turned on the question of priority between a mere attaching judgment-creditor, the official receiver and a person in whose favour an order had been made by a Court to bring the money into Court, The cases cited by Mr. Lahiri do not therefore militate against the view taken by me. The decision in Chitrambani Ltd. v. Kisava, Achan, 53 C. W. N. 832, did not decide the point before us. The first contention raised on behalf of the appellant therefore succeeds.

29. It is not necessary to express an opinion on the second contention as we are not in a position to ascertain, on the materials before us, how far the judgment-debtor has fulfilled the terms of the reopened decree. We may observe, however, that the mere passing of the reopened decree had not the effect of extinguishing the security for costs of the Privy Council.

30. The third contention is not of substance, the claim was filed by one of the decree-holders and the order made was not a final one.

31. The result therefore, is that this appeal succeeds, the decision of the Court below is set aside and the execution case will proceed. In the circumstances of the case, the parties will bear their own costs.

Guha, J.

I agree.


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