1. This appeal is by the decree-holder and arises out of an application made by her under Section 86(2)(e), Bengal Money-Lenders Act, and the objection raised thereto by the judgment debtor under Section 47. Civil P.C. Both the Courts below have dismissed the appellant's application on the same ground.
2. The material facts are the following. It appears that the appellant obtained against the respondent a decree for Rs. 55-7-6 in Small cause Court Suit No. 288 of 1988 of the Court of the Sixth Munsif of Dacca. She put the decree into execution and brought certain properties of the judgment-debtor to sale at which she purchased the properties herself. Possession was delivered to her on 2-12-1941. Thereafter, on the Bengal Money-Lenders Act having come into force, the respondent commenced a suit under Section 86 of that Act which was other class Suit No. 155 of 1943. In that suit, the old decree was re-opened and a new decree passed for Rs. 85 on 511-1943. The amount of the new decree was made payable in annual instalments of Rs. 8 payable in Falgun of each year commencing from the Bengali year 1350 up to the year 1358 and the last instalment of Rs. 13 was made payable in Falgun of 1359. An appeal by the decree-holder was dismissed on 12-4-1944, and by the appellate decree an amount of Rs. 9 was awarded against, the decree-holder as costs.
3. It is necessary at this stage to set out certain provisions contained in the new decree passed by the trial Court which was simply affirmed by the Court of appeal below. The provisions are as follows:
The payment of the instalment shall be subject to Section 34 (2), Bengal Money-Lenders Act The possession of the suit land be restored to the plaintiff. In default of payment of any of the instalments, the defendant (decree-holder) shall be again put into possession of the suit land in terms of Section 36(2)(e), Bengal Money-Lenders Act.
4. The judgment-debtor defaulted in paying the very first instalment of Falgun 1350 B.S. and thereupon the application, out of which the pre-sent appeal arises, was made by the decree holder. Various objections were raised by the judgment-debtor under Section 47, Civil P.C., of which only two are material. The first objection was that no notice having been given to the judgment-debtor before the application for execution, as required by Section 84(2), Bengal Money-Lenders Act, there was no default in law and the decree-holder was not entitled to restoration of the property on the basis of that section. The second objection was that there had been no default in fact, inasmuch as under the terms of the appellate decree the judgment-debtor was entitled to recover an amount of Rs. 9 as costs from the decree-holder which was in excess of the amount of the first instalment.
5. The first objection has been upheld by both the Courts below. The second one was repelled by the trial Court and was not referred to by the appellate Court at all. The Courts below have held that under Section 84(2), Bengal Money-Lenders Act, it is a condition precedent to any relief being given to the decree holder on the basis of a default that a notice as contemplated by the section should first be given to the judgment-debtor.
6. In support of the present appeal, it has been contended by Mr. Lahiri that this view of Section 84(2) is erroneous. His contention is that what Section 84(2) contemplates is an application for execution of the decree for the recovery of the instalment in respect of which the default has been committed, but the section has no application to a case where the application is merely one for restoration of possession under the provisions of Section 36(2)(e).
7. It may be pointed out at once that Section 34(2) could not apply to a case of this type of its own force. The instalments to which the sub-section refers are instalments 'referred to in Clause (b) of Sub-section (1) of Section 34' and when one refers back to the instalments mentioned in Clause (b) of Sub-section (1), one finds that those are instalments directed either in a suit brought by the creditor against the debtor for recovery of a debt, or instalments granted on the application of the judgment-debtor after a decree has been passed in respect of the whole amount of the decree as it stands. There is no question under Section 34(2), or rather under Section 34(1)(b), of re-opening any decree and reducing its amount. Quite clearly, the instalments contemplated by Section 34(2) are not instalments directed by a new decree passed under Section 36(2) of the Act. So it was held in Ananda Chandra Sen v. Suresh Chandra ('44) 48 C.W.N. 453, and with the reasoning of that case as also the conclusion arrived at therein, I respectfully agree.
8. But although, as a matter of law Section 34(2) could not apply to instalments directed by a new decree passed under Section 36(2), Bengal Money. Lenders Act, yet in the present case the section must be regarded, because the new decree incorporated it in terms. However wrong or inappropriate it might have been, the decree-holder must accept the position that the decree under which he is claiming attracts Section 34(2). She must, therefore, make out a case, if she can, under the sub-section itself and such has been her attempt.
9. It appears to me from a close examination of the language in which Section 34(2) is expressed that the execution contemplated by the sub-section is only execution for recovery of the instalment in respect of which a default has been committed. The material words are 'for execution of the decree in respect of such instalment together with interest thereon at the rate of...from the date of such default.' Mr. Majumdar, who appeared on behalf of the respondent, contended that the expression 'in respect of such instalments,' was wide enough to cover a case where an application was made for restoration of the property on the ground that a default had been committed in he payment of such an instalment. The words I have quoted, he argued, could not be interpreted as limiting the execution to an execution for recovery of the defaulted instalments. I am unable to accept this view of the sub-section. It is quite true that the words 'in respect of' are fairly general and had they stood alone, I would have been inclined to accept the interpretation suggested by Mr. Majumdar, but I cannot disregard the words which follow, namely 'together with interest thereon.' These words, to my mind, make it perfectly clear that the execution contemplated by the sub-section is only an execution for recovery of the instalment.
10. If that be so, then it will be found to follow at once that the provisions contained in the main paragraph of Section 34(2) have no reference to an application for restoration of the property under Section 36(2)(e) and consequently the provision as to a previous notice would not apply. But before the section can be disposed of finally, the two provisos must be considered.
11. Both the provisos provide for some extension of time being granted to the judgment, debtor and for wiping off the default, in case he makes payment within time. It might, therefore, be contended that in a case to which Section 34(2) applies, or has been made applicable, however wrongly, it cannot be assumed that there has been default till the time and the opportunity available to the judgment-debtor for obtaining an extension of time under the two provisos have been exhausted. The whole basis of an application under Section 86(2)(e) is that a default has occurred ; but' if the statute provides that a default having occurred in the first instance, can yet be extinguished, as if it had not occurred at all, then the circumstances under which such extinction can take place must be left behind before a default can finally be said to have occurred.
12. In my view, the provisos would be of no help to the judgment-debtor in the present case. If the notice contemplated by the main paragraph of Sub-section (2) relates to execution for recovery of an instalment and as I have held it does, then the second proviso can have no application where the application has been not for the recovery of an instalment but simply for restoration of the property, The language of the second proviso is 'after receiving the notice referred to in this sub-section and prior to an order for execution of the decree.' Quite clearly, when the application is not for the recovery of the amount of an instalment, the judgment-debtor need not be given any notice and will not receive any and if he does not, no right to apply for an extension of time under the second proviso will arise in his favour.
13. The position, however, is somewhat different under the first proviso. There, the words are that the Court may allow an extension of time 'prior to an order for execution of the decree.' Assuming that the execution contemplated by the section is an execution for recovery of an instalment, the Court, in my view, can grant an extension of time, even if no such execution has been commenced. Mr. Lahiri contended that the words I have quoted implied that there must be an application for execution by way of the recovery of an instalment, and the Court was empowered by the proviso to grant an extension of time between the making of such application and passing of the order for execution thereon. I do not think that the language of the proviso compels me to adopt that interpretation. Even if an application for execution by way of recovery of the defaulted instalment has not been made, an order for extension of time will still be prior to an order for execution of the decree. In order that the order for extension of time may be prior to an order for execution, it is not essential that an application for execution of the kind required must in fact have been made and should be pending. If the Court be empowered to grant an extension, I see no reason why the section should be interpreted as requiring an application by the decree-holder for execution and a further application by the judgment-debtor for extension of time, unless the words leave no other construction open. In my view the proviso does empower a judgment-debtor to apply for extension of time even in a case where no application for execution by way of recovery of the instalment has been made by the decree-holder.
14. This view of the proviso, however, as I have already indicated, will not assist the respondent, inasmuch as she has not made any application under the proviso uptil now. The first of the objections raised by the judgment-debtor to which effect has been given by the Courts below must, therefore, be overruled.
15. In this Court Mr. Majumdar repeated the second objection, based upon Order 21, Rule 19, Civil P.C. His contention was that if the decree-holder owned his client a larger sum, under the terms of the appellate decree, she could not be said to have been in default at all. With respect to this proposition he referred to two Allahabad cases, namely, the cases in Bhagwan Singh v. Ratan ('94) 16 All. 395 and Ishri v. Gopal Saran ('84) 6 All. 351.
16. In my opinion, this contention is not sound and the cases cited do not deal with a matter of this kind. Although the judgment-debtor may be entitled to a larger sum from the decree-holder under the same decree or otherwise, this liability of the decree-holder would be relevant, if and when the decree-holder applied for recovery of the instalment by execution. It has no bearing at all upon the basic question as to whether a default was or was not committed. By the decree a certain sum was made payable on or before a certain date. Failure to pay that sum on that date would at once bring into existence a default within the meaning of Section 86(2)(e). Whether after the decree-holder proceeded to execution in order to recover the instalment, he could be successfully met with a plea of set off is, in my view, a different matter altogether. The respondent cannot, in my opinion, resist the decree-holder's application for restoration on the ground that the latter owed her a sum larger than the amount of the first instalment and that, therefore, no default in fact had been committed.
17. In the result, since there is no other objection outstanding, the appeal is allowed, the judgments and orders of both the Courts below are set aside and the respondent's objections under Section 47 dismissed. The executing Court is directed to proceed with the decree-holder's application in accordance with law. I make no order as to costs.