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Pramatha Nath Sanyal S/O Bhabani Nath Sanyal Vs. Sailesh Chandra Chowdhury - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1943Cal214
AppellantPramatha Nath Sanyal S/O Bhabani Nath Sanyal
RespondentSailesh Chandra Chowdhury
Excerpt:
- .....the whole amount would become payable and the plaintiff would be entitled to apply for a final decree in the manner contemplated by section 34, sub-section (1), clause (a), sub-clause (ii), bengal money-lenders act. the controversy centres round the point as to whether the court was empowered to grant an extension of time to pay the first instalment due under the reopened mortgage decree. now, a preliminary decree for sale which is passed under order 34, rule 4 of the code, does not obviously contemplate payment of the amount declared due in instalments. a period of six months is provided for the payment of the entire amount after it is ascertained or declared due and in default of payment, the plaintiff is entitled to apply for a final decree for sale of the mortgaged.....
Judgment:

B.K. Mukherjea, J.

1. (Civil Revision Case No. 1093 of 1942). - This rule is directed against an order of the learned Subordinate Judge, First Court, Mymensingh, dated 15th April 1942, by which the judgment-debtors opposite parties were allowed an extension of time for paying the first instalment of the mortgage-money payable under a new preliminary decree made under Section 34, Bengal Money-Lenders Act. The material facts are not in controversy and may be shortly stated as follows : The petitioner as mortgagee obtained a decree against the opposite parties in the Court of the First Subordinate Judge at Mymensingh in mortgage Suit No. 4 of 1935 of that Court on 9th July 1935. The decree was made by consent and a sum of Rs. 2,33,393-13-0 was payable under it by the judgment-debtors to the decree-holder in 20 annual instalments commencing from chaitra 1343 B.S. It is not disputed that the instalments for the years 1343 and 1344 B.S. were duly paid by the judgment-debtors. Thereafter, their estate was taken possession of by the Court of Wards and the Manager of the Court of Wards made an application for the re-opening of the consent decree under Section 36, Bengal Money-Lenders Act. This application was allowed and a new preliminary decree was passed on 7th February 1942 in accordance with the provisions of Section 34 of that Act, by which a sum of Rs. 1,51,214 was declared to be due by the judgment-debtors and it was made payable in 14 equal annual instalments beginning with chaitra 1348 B.S. and ending with chaitra 1361 B.S. The judgment-debtors could not pay the entire sum due and the first instalment under the preliminary decree mentioned aforesaid and on 2nd Baisakh 1349 B.S. corresponding to 15th April 1942, the Manager of the Court of Wards made an application to the Subordinate Judge praying that he might be allowed to pay Rs. 4000 only towards the first instalment of the mortgage decree and that one year's further time might be granted of paying the balance. Thereupon the Court made the following order : 'Heard pleader. They may deposit Rs. 4000. They may be given five months' time for paying the balance.' It is against this order that the present rule has been obtained.

2. It cannot be disputed that the new decree for sale which was made by the Court after the re-opening of the old was in conformity with the provisions of Section 34, Bengal Money-Lenders Act. The sum of Rs. 1,51,214 was declared to be due by the mortgagee under Order 84, Rule 4, Sub-rule (1), Civil P.C., and it was made payable in 14 annual instalments. It was further provided that in default of payment of any single instalment, the whole amount would become payable and the plaintiff would be entitled to apply for a final decree in the manner contemplated by Section 34, Sub-section (1), Clause (a), Sub-clause (ii), Bengal Money-Lenders Act. The controversy centres round the point as to whether the Court was empowered to grant an extension of time to pay the first instalment due under the reopened mortgage decree. Now, a preliminary decree for sale which is passed under Order 34, Rule 4 of the Code, does not obviously contemplate payment of the amount declared due in instalments. A period of six months is provided for the payment of the entire amount after it is ascertained or declared due and in default of payment, the plaintiff is entitled to apply for a final decree for sale of the mortgaged property. Sub-rule (2) of Rule 4 of Order 34 then provides as follows:

The Court may, on good cause shown and upon terms to be fixed by the Court, from time to time, at any time before a final decree for sale is passed, extend the time fixed for the payment of the amount found or declared due under Sub-rule (1) or of the amount adjudged due in respect of subsequent costs, charges, expenses and interest.

3. Section 34, Bengal Money-Lenders Act, has modified the law relating to decrees in mortgage suits in certain respects. In the first place, it has been provided by Sub-section (1), Clause (a), Sub-clause (i) that in spite of the time limit of six months provided in Rule 2 or Rule 4 of Order 34 of the Code, the Court has got to direct that the payment of the amount found or declared due is to be made in such number of annual instalments and on such dates as the Court thinks fit, having regard to the circumstances of the plaintiff and the defendant and the amount of the decree. Sub-clause (ii) then provides that in default of payment of any such instalment, the plaintiff shall, after giving to the defendant such notice as may be prescribed, be entitled to apply for a final decree, and the date of such default shall be deemed to be the date fixed under Sub-clause (i) of Clause (e) of Sub-rule (1) of the said Rule 2 for payment of the whole amount found or declared due under or by the preliminary decree. Then there comes a proviso which lays down that:

Nothing in this clause shall affect the power of the Court to allow extension of time under Sub-rule (2) of Rule 2 or Sub-rule (2) of Rule 4 of the said order.

4. The question for our consideration is whether the proviso just stated entitles the Court to grant an extension of time for payment of any one of the instalments according to which the amount due is payable under the preliminary decree. The answer, in our opinion, must be in the negative; Sub-rule (2) of Rule 4 of Order 34, Civil P.C., refers only to the payment of the entire amount ascertained or e declared due and not to any instalment. It is true that under Section 34, Sub-section (1), Clause (a), Sub-clause (i) the decree that has got to be made now must provide for payment of the mortgage money in instalments; but Sub-clause (ii) quoted above expressly lays down that the date of default of payment of any one instalment shall be deemed to be the date fixed under Order 34, Rule 2, Sub-rule (1), Clause (c), Sub-clause (i), Civil P.C. Prom these provisions the conclusion, in our opinion, is irresistible that as soon as there is a default of payment of any single instalment, the whole amount of the mortgage decree becomes immediately d payable and as the date of default is to be deemed to be the date fixed for payment of the whole amount found or declared due, the proviso which reserves the power of the Court to act under Sub-rule (2) of Rule 4 of Order 34 of the Code can only empower it to extend the time for payment of the whole amount and not of any particular instalment. The Legislature, we think, could not have contemplated that the Court after making due provisions for instalments in the preliminary decree would be entitled to further direct that any particular instalment may again be paid in a number of instalments. If any case of hardship arises, the judgment-debtor is not without his remedy in such cases and an adequate protection is given to him by the next proviso which is attached to Section 34, Sub-Section (1), Clause (a), Bengal Money-Lenders Act. This proviso lays down that if the defendant after receiving the notice referred to in Sub-clause (ii) and before a final decree is passed, makes payment into Court of the amount due from him in respect of any such instalment, the payment of such instalment shall not be deemed to be in default and the Court shall not pass a final decree. The position, therefore, is that as soon as a default occurs in the payment of one instalment, the plaintiff is entitled to apply for a final decree under Section 34, Sub-section (1), Clause (a), Sub-clause (ii), Bengal Money-Lenders Act. As the whole amount becomes payable on the date of default, proviso 1 mentioned above empowers the Court to extend the time for payment of the entire amount due. But the Court is not entitled to grant an extension of time with regard to the payment of the particular instalment. The judgment-debtor, however, as soon as he receives notice of the application for the final decree and before the final decree is actually made, can deposit in Court the amount due by him in respect of that particular instalment and proviso 2 will give him complete protection in such cases and will prevent the passing of the g final decree.

5. In our opinion, the Court below was not entitled to direct that out of the sum of Rs. 11,000 odd which was due as the first instalment, the sum of Rs. 4000 should be taken from the judgment-debtor in the beginning of Baisakh 1342 B.S. and for the balance of Rs. 7000 a further time of five months should be given. The rule is, accordingly, made absolute and the order made by the Court below is set aside. As there has been a default in payment of the first instalment, the plaintiff mortgagee will certainly be entitled to apply for a final decree. But the judgment-debtors also would have the liberty to deposit the amount of the first instalment as laid down in proviso 2 quoted above and the passing of the final decree can thereby be stopped. We make no order as to costs of this rule.

6. Civil Revision Case No. 1094 of 1942. - The point taken in this rule is identically the same as taken in civil Rule No. 1093 of 1942 which we have just disposed of. This rule is also made absolute and disposed of in the manner indicated in civil Rule No. 1098 of 1942. We make no order as to costs of this rule.

Pal, J.

7. I agree.


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