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Tarapada Banerjee and ors. Vs. AjimaddIn Mallik - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1941Cal699
AppellantTarapada Banerjee and ors.
RespondentAjimaddIn Mallik
Excerpt:
- .....notes. the mortgage suit was numbered 20 of 1927 and the money suit 21 of 1927. in the money suit a decree was passed on 2lst june 1927, for a sum of rs. 2473-13-0 inclusive of costs, with interest on the decretal amount at the usual rate of 6 per cent. per annum. the mortgage suit was decreed about a month later, namely on 19th july 1927, for a total sum of rupees '3324.2.6, inclusive of interest pendente lite and costs. thereafter it is stated the debts under these decrees were adjusted between the parties, and in lieu thereof on 2nd june 1928 tulsi devi executed in favour of the opposite party, a mortgage bond for a sum of rs. 6313-5-0, which was made up of the amounts due up to that date on account of the said two decrees. there was no provision for payment of interest under.....
Judgment:

Biswas, J.

1. This rule arises out of an application under Section 36, Bengal Money-lenders Act, which was dismissed by the learned Subordinate Judge of Burdwan on the ground that the borrowers were not entitled to any relief. The facts of the case are briefly as follows : One Satya Charan Mukherjee died, leaving a widow, Tulsi Devi, a son, Kamalesh and three daughters. Kamalesh inherited his father's properties, but he died intestate and unmarried, leaving his widowed mother Tulsi Devi as his sole heiress. Tulsi Devi died in Ashar 1341 B.S., and upon her death the properties of Kamalesh devolved on the petitioners as the next reversioners, being the daughters' sons of Tulsi Devi. It appears that on 7th July 1920, Tulsi Devi borrowed a sum of Rs. 1500 from the opposite party, Azimuddin Mullick on the security of some of her properties. The loan carried interest at the rate of Re. 1/8 per cent, per month. Later on, on various dates in the year 1924, Tulsi Devi borrowed further sums from the same party and at the same rate of interest aggregating to a total of Rs. 1500. These were unsecured loans on promissory notes. In February 1927, the opposite party instituted two suits for recovery of his dues in respect of both the mortgage and the promissory notes. The mortgage suit was numbered 20 of 1927 and the money suit 21 of 1927. In the money suit a decree was passed on 2lst June 1927, for a sum of Rs. 2473-13-0 inclusive of costs, with interest on the decretal amount at the usual rate of 6 per cent. per annum. The mortgage suit was decreed about a month later, namely on 19th July 1927, for a total sum of Rupees '3324.2.6, inclusive of interest pendente lite and costs. Thereafter it is stated the debts under these decrees were adjusted between the parties, and in lieu thereof on 2nd June 1928 Tulsi Devi executed in favour of the opposite party, a mortgage bond for a sum of Rs. 6313-5-0, which was made up of the amounts due up to that date on account of the said two decrees. There was no provision for payment of interest under this mortgage, but possession of the mortgaged properties was given to the opposite party in lieu of interest and it is not disputed that the opposite party has since remained in possession of the same.

2. In 1938, the opposite party instituted a suit to enforce this last mentioned mortgage, being Mortgage Suit No. 11 of 1938, and the total claim was laid at the sum of Rs. 6313.5.0 being the amount of the mortgage debts stated in the bond. A preliminary decree followed in the usual course on 3lst March 1939, for a sum of Rs. 7163.7-0 inclusive of costs, and the decree carried interest at the rate of 6 per cent. per annum. On 5th December of that year, the decree was made final, and thereafter on some date in 1940, the decree-holder put the final decree into execution in Mortgage Execution Case No. 60 of 1940. It is in this execution case that the petitioners as successors-in-interest of the original borrower filed the present application under Section 36, Bengal Money-lenders Act, whereby they sought to re-open the transaction. The application purported to be made under Sub-clause (1) of Clause (a) of Sub-section 6. As already stated, the learned Subordinate Judge who heard the application dismissed it on the ground that the petitioners were not entitled to any relief under the provisions of the Act. It is against this order that this rule has been obtained.

3. The first point that arises is whether the application was competent. Sub-section (6) of Section 36, Bengal Money-lenders Act, requires . that in order that the Court may be invited to exercise the powers conferred by Sub-sections (1) and (2), there must be a decree passed by the Court in a 'suit to which this Act applies which was not fully satisfied by the 1st day of January 1939.' So far as the present decree is concerned, there can be no doubt that it was passed in a suit which was pending on the 1st day of January 1939, because the final decree in the suit was not passed before 5th December of that year. From that point of view, the suit would easily come within the definition of a 'suit to which this Act applies,' as given in Sub-section (22) of Section 2. It is not, however, quite so clear as to whether the decree can be said to fulfil the other conditions laid down, namely, that it must be a decree 'which was not fully satisfied by the 1st day of January 1939.' On the face of it, it seems to be difficult to predicate of a decree which ex hypothesi is passed after 1st January 1939, that it was not fully satisfied by that date. Such a description would not only not be apposite, but appear to be wholly meaningless. There can evidently be no question of a decree being satisfied, fully or otherwise, prior to the date on which it is passed. There may be room, therefore, for argument that the present application did not comply with all the requirements of Clause (a) of Sub-section (6), and was not, therefore, a competent application. As this point however, was not raised before us, and as it is possible to dispose of the rule on other grounds, we must reserve for another occasion a final decision on this interesting, but intriguing question as to the correct interpretation of the phraseology employed in el. (a). We shall assume for our present purposes that the application was maintainable, and on that view proceed to consider whether there was any other bar to the granting of relief to the borrowers.

4. The learned Judge holds, and that point of view has been pressed before us on behalf of the opposite party, that the application escapes the first, but is hit by the second proviso to Sub-section (1) of Section 36. It will be seen that Sub-section (1) provides inter alia that in a suit to which this Act applies, the Court may exercise all or any of the powers set out therein for the benefit of the borrower. Sub-section (2) provides that if in exercising such powers the Court re-opens a decree, the Court may, among other things, pass a new decree. The powers which are conferred on the Court by Sub-section (1) include the re-opening of any transaction and the re-opening of any accounts already taken between the parties. There is, however, an important proviso to this sub-section which limits. the exercise of the powers thereunder to a considerable extent. The proviso is in two parts which are embodied in Clauses (1) and (2). Clause (1) forbids the Court to reopen adjustments or agreements which were concluded between the parties more than 12 years before the date of the suit in which the application for relief is made, and Clause (2) lays down that in re-opening transactions or accounts, the Court is not to do anything which 'affects' any decree of a Court. There is, however, an exception within the second proviso, the effect of which is that if a decree can be brought within the exception, there is nothing to prevent the Court acting in exercise of its powers in such a way as to affect such a decree. The exception excludes from the operation of this proviso 'a decree in a suit to which this Act applies which was not fully satisfied by the 1st day of January 1939,' as well as an award under the Bengal Agricultural Debtors Act, with which we are not concerned in this appeal, So far as one can see, therefore, the scheme of the Act as embodied in Sub-section (1) of Section 36 seems to be that although the Court is given almost plenary powers to reopen past transactions and past accounts it is still not permitted to disturb adjustments or agreements made more than twelve years before, or to touch decrees which may have been passed between the parties and which were not outstanding or capable of execution on 1st January 1939, this being the material date which appears to have been adopted in the Act for this and other purposes.

5. On the facts already stated, it will be seen that there is no attempt here to disturb any adjustment which is more than 12 years old. The adjustment which is sought to be reopened is in fact stated to have been made on 2nd June 1928, the date on which the last mortgage was executed, and this is within 12 years of the date on which the present suit was instituted. The learned Judge is, therefore, quite right in holding that proviso (i) does not stand in the way of the petitioners. It seems to us, however, that the petitioners have no answer in so far as the second proviso is concerned. Mr. Chakravarty tried to avoid the effect of this proviso by a two-fold argument. In the first place, he contended that there was no question here of 'affecting' a decree at all, and secondly, he said that even if it be supposed that any decrees would be affected by reason of the exercise of the powers which were invoked in this case, the decrees came within the exception laid down in the proviso. In our opinion, there is no substance in any of these contentions.

6. On the first point, there can be no doubt that if the relief asked for were allowed, it would amount to affecting the two decrees which had been passed in the year 1927, namely, the decrees in Mortgage suit no. 20 of 1927 and Money Suit No. 21 of 1927. The consideration for the mortgage of 2nd June 1928 was the total of the two sums which were due under these decrees, and the reopening of the mortgage transaction must necessarily, therefore, involve a re-opening of the two decrees. It is no answer to say that tie decrees had ceased to exist by reason of the execution of the new bond in lieu thereof, and that, therefore, there were no decrees to be affected. Proviso (ii), as we apprehend, does not mean that a decree may not be affected within the meaning thereof, if it is no longer subsisting. On the other hand, it seems to us clearly to contemplate the affecting of decrees which were already satisfied. Such satisfaction might be the result of payment in Court or out of Court, or on other grounds, as would appear to be the case here.

7. As regards Mr. Chakravarty's next attempt to get rid of the proviso, all that need be said is that his position in this respect is still weaker. The two decrees of 1927 cannot obviously be said to be decrees in suits to which the Act applies, which were not satisfied by 1st January 1939. Neither part of this description is in fact applicable. The suits in which these decrees were passed could not certainly be described as 'suits to which this Act applies' within the definition clause of the Act, as neither the suits nor any execution proceedings in connexion therewith were pending on 1st January 1939. Nor can it be contended that the decrees were decrees which were not fully satisfied by that date. On Mr. Chakravarty's own showing in connexion with the first point, the decrees had ceased to exist on execution of the mortgage bond in lieu thereof. That would doubtless be satisfaction of the decrees, but even if it be supposed that the execution of the fresh bond did not have that effect, it hardly admits of doubt that the decrees had been satisfied by operation of the law of limitation. It does not appear that any steps were taken within three years of the passing of these decrees to enforce the same by way of execution. On that ground alone, it must be held that the decrees were no longer in existence and had been satisfied. That being so, we do not think that the exception contained in the second proviso to Sub-section (1) is of any avail to the petitioners. On these grounds we must hold that the learned Subordinate Judge was right in the view he took, and this rule must accordingly be discharged. We make no order as to costs. Let the counter-affidavit and the affidavit in reply filed in Court be kept on the record.

B.K. Mukherjea, J.

8. I agree.


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