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Hari Charan Nath and ors. Vs. Barada Prasad Mondal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1947Cal325
AppellantHari Charan Nath and ors.
RespondentBarada Prasad Mondal and anr.
Cases Referred and Abdul Rahaman v. Sarafat Ali
Excerpt:
- .....now drawn up that the right of defendant 2 barada prasad mondal shall not be affected by the reopened decree.we deal with the error in the next succeeding paragraph.6. the learned advocate for the appellant urges that if he is unsuccessful in his submissions on the points of law which arise in the appeal, the position will be that although he is not to have his property restored to him nevertheless he is to pay the debt in full without allowance being made for the money for which the property was sold in execution. this appears to as to be a legitimate grievance and the learned advocate for the respondent states that he has no objection to the appellant being given credit for rs. 83 being the amount for which defendant 1 purchased plaintiff's homestead, in the decree of this court in.....
Judgment:

Blank, J.

1. This is an appeal by the plaintiff, a borrower, from a decision of a learned Sub-ordinate Judge of the 24 Parganas reversing or rather' modifying, the decision of the learned Munsif of the second Court at Baruipore.

2. The plaintiff's case in brief is that he borrowed Rs. 25 and Rs. 50 from defendant 1 on two promissory notes, that he failed to pay and that defendant 1 filed a suit and obtained a decree with interest at 25 per cent Defendant 1 purchased in execution plaintiff's homestead for Rs. 85 on 14-7-1938. The decree is still unsatisfied. Defendant 1 sold the homestead to defendant 2. The plaintiff applied for reduction of interest and for instalments.

3. Both the defendants contested. Defendant 2 alleged that he was a bona fide purchaser for valuable consideration so that the decree could not be re-opened. Defendant 1 raised certain defences which are not now material. The learned Munsif found for the plaintiff in full and gave a decree for sums aggregating about Rs. 120 payable in four instalments.

4. The learned Subordinate Judge found, reversing the finding of the trial Court in this respect that the purchase by defendant 2 was a bona fide purchase for value. He held further that the decree could not be re-opened so as to affect the title of defendant 2. The argument before the learned Subordinate Judge appeals to have proceeded on the discussion of Section 36(2)(b), Bengal Money lenders Act, 1940. It was argued before the learned Subordinate Judge, as it has been argued before us3 that if a purchaser had

acquires his right by private purchases from the auction purchaser, it cannot be said that he acquired his right in consequence of the execution and, therefore his right cannot be immune from the operation of this Act.

The learned Subordinate Judge repelled this argument on the consideration that

this clause is enacted to protect the right of bona fide purchasers.... The principle underlying this section is that the right of a bona fide purchaser for value should not be disturbed.

The learned Subordinate Judge also held that Clause (c) of Section 86(2) would not apply as the actual possession not being with the creditor, the Court cannot ask defendant 2 to vacate in favour of Haricharan.

5. The learned Subordinate Judge, however, appears to have erred in the ordering portion of hi3 judgment which is that

this appeal be allowed...that the judgment and decree of the learned Munsif be modified and that it shall be noted in the decree now drawn up that the right of defendant 2 Barada Prasad Mondal shall not be affected by the reopened decree.

We deal with the error in the next succeeding paragraph.

6. The learned Advocate for the appellant urges that if he is unsuccessful in his submissions on the points of law which arise in the appeal, the position will be that although he is not to have his property restored to him nevertheless he is to pay the debt in full without allowance being made for the money for which the property was sold in execution. This appears to as to be a legitimate grievance and the learned Advocate for the respondent states that he has no objection to the appellant being given credit for Rs. 83 being the amount for which defendant 1 purchased plaintiff's homestead, in the decree of this Court in the event of the appeal otherwise failing, as we are about to hold it must.

7. The main argument of the learned Advocate for the appellant before us was that Section 36(2)(b) was not attracted because the sale, under which defendant 2 claims, was not in consequence of the execution; as the learned Advocate expressed it, it was 'the consequence of the consequence of the execution,' after the execution was over. The learned Advocate also submitted that there was no finding in the Court of appeal below that the sale to defendant 2 was in good faith and also that the decision of the lower appellate Court on the subject of benami was not a proper judgment of reversal; but neither of these arguments was pursued further. Indeed, in view of the first issue before the Court of appeal below 'Is the appellant a bona fide purchaser for value?' and of the finding 'I hold that the purchase by defendant 2 was bona fide one for value' we find it difficult to conceive how the argument could have been proceeded with further.

8. Reverting to the main argument, the learned Advocate submitted that Clauses (b) and (c) of Sub-section (2) are to be read together and that Clause (c) contemplates a case where the decree-holder is the auction purchaser, and Clause (b) contemplates a case where a stranger is the auction-purchaser. No doubt the two sections are to be read together, but we find ourselves unable to read them as conveying the meaning placed before us by the learned Advocate. Rather we find that subs, (c) contemplates the case where the property of the judgment-debtor acquired by the decree-holder in consequence of the execution of the re-opened decree is in the possession of the decree-holder. This has been found by the Courts below not to be the fact in this case. Therefore, in our opinion, Sub-section (c) cannot apply. Reading Sub-section (b) we find that it provides for the ease where 'any person, other than the decree-holder' has acquired any right bona fide 'in consequence of the execution of the reopened decree.' Here we find defendant 2 (a person other than the decree-holder) has acquired bona fide (as found-by the final Court of fact) rights. If he has acquired them in consequence of the execution of the re-opened decree, defendant 2 is within the protection of the clause.

9. Thus the question is whether defendant 2 has acquired them in consequence of the execution of the re-opened decree. The learned Advocate argues that 'in consequence of the execution' does not cover subsequent transfer. His submission is that 'in consequence of the execution' means something that follows directly on the execution and not remotely. Defendant 1 purchased the homestead in execution on 14th July 1938; the date of the kobala, Ex. C by which it was sold to defendant 2 is 25th August 1941. It appears that the plaintiff (sic defendant 1) took symbolical delivery of possession in December 1938, and that execution was started in 1941 for the balance of the decree, the case being disposed of in August 1941. On the facts of the present case, we cannot hold that the purchase by defendant 2 was so remote in point of time that it cannot be considered to be 'in consequence of the execution.' The learned Advocate sought to argue that 'in consequence' must mean 'in direct consequence' but this has never beeta held and we find nothing either in the statute or in principle why it should be so held. In our opinion, the words 'in consequence of' ought to be construed in the ordinary dictionary meaning. In the Oxford English Dictionary the meaning of 'consequence' is given as 'a thing or circumstance which follows as an effect or result of something preceding,' and in particular, the phrase 'in consequence of' means 'as a result of.' Thus there may be a connection of the nature of the connection of 'cause and effect or there may be a connection of the nature of a result, i.e., something which happens after something else and is in someway connected with it. In our opinion that is all that the statute contemplated, viz., that the right should be acquired by a person other than the decree-holder as a result of the execution of the re opened decree. Cases may arise in which there may be a lapse of many years or in which there may be a number of intervening transactions, but we are not concerned with such cases and we do not purport to decide anything concerning them. Suffice it to say that in the present case the lapse of time is inconsiderable and the decree-holder auction-purchaser has transferred to one person, that person being defendant 2. In our opinion, defendant 2 has acquired his right in good faith (as has been found) and in consequence of the execution of the re-opened decree. Had the re-opened decree not been executed, defendant 2 could not have [acquired his right and on the facts of the present case we consider that to be enough to 'bring him within the protection of the clause.

10. The learned Advocate also sought to argue that considerations relating to restitution under the Code of Civil Procedure also arose in the present case. He submitted that Section 36 had only added another method of setting aside a decree to those provided for in the Code of Civil Procedure and he placed before us the decisions in Satis Chandra v. Rameswari Dasi 2 A.I.R. 1915 Cal. 363 and Abdul Rahaman v. Sarafat Ali 3 A.I.R. 1916 Cal. 710. We have listened to his discussions with attention but we do not find that it adds anything useful to what is stated in the section itself. Rather we find ourselves unable to accept his submission that Section 36 merely adds a method of setting aside a decree. In our opinion, Section 36 provides rights and remedies sui generis and considerations relating to restitution under the Code of Civil Procedure are not, in our opinion, illustrative.

11. On the foregoing considerations, the appeal is dismissed with costs to defendant 2, subject to the modification already mentioned.

Edgley, J.

I agree.


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