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Golam MahiuddIn Vs. Hrishikesh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1944Cal319
AppellantGolam Mahiuddin
RespondentHrishikesh
Cases ReferredSuresh Channdra v. Lal Mohan
Excerpt:
- .....this being the position the appellant's case is quite hopeless unless he can rely upon a certain title suit which was filed after 1st january 1939. part of the mortgaged property was purchased, in execution by the decree-holder. the sale was confirmed on 25th september 1935 and delivery of possession was taken on 10th march 1936. a title suit was instituted on the allegation that the decree-holder was subsequently dispossessed and the relief prayed for was a declaration of his title and delivery of possession.3. it would obviously be impossible to fit this suit into the definition of a 'suit to which the act applies' in section 2 (22) wide though that definition undoubtedly is. it was however argued by mr. farhat ah that section 36 applies to that suit in view of the provisions of.....
Judgment:

Henderson, J.

1. This appeal is by the judgment-debtor and arises in connexion with an application for review filed by the appellant under the provisions of Section 36 (6), Bengal Money-Lenders Act. As there was some doubt as to the competency of the appeal there is an alternative application in revision. My own view is that the appeal is competent and that has not been challenged on behalf of the decree-holder. The position is this: It is now well-settled that, if the application of the petitioner had been rejected by the Munsif, the remedy would have been by way of revision. The application was, however, successful. The decree was reopened and a new decree was passed. It is also well-settled that the respondent was entitled to appeal against the new decree. He did so with the result that the new decree was set aside and the original decree has been restored. Certainly the practical effect of that is that the original application has been rejected. The lower appellate Court, however, has done really more than reject an application for review but has set aside a decree within the meaning of the Code of Civil Procedure. On this view a second appeal is competent.

2. Now when the appellant filed his application he had a good case, because he relied upon the decision of Edgley J. in Suresh Channdra v. Lal Mohan : AIR1942Cal121 In view of that decision all that he had to show was that the decretal amount was not paid in full. As I felt unable to follow this decision I referred the matter to a Division Bench with the result that the decision has been overruled. On this view the learned Judge set aside the decision of the Munsif. This being the position the appellant's case is quite hopeless unless he can rely upon a certain title suit which was filed after 1st January 1939. Part of the mortgaged property was purchased, in execution by the decree-holder. The sale was confirmed on 25th September 1935 and delivery of possession was taken on 10th March 1936. A title suit was instituted on the allegation that the decree-holder was subsequently dispossessed and the relief prayed for was a declaration of his title and delivery of possession.

3. It would obviously be impossible to fit this suit into the definition of a 'suit to which the Act applies' in Section 2 (22) wide though that definition undoubtedly is. It was however argued by Mr. Farhat AH that Section 36 applies to that suit in view of the provisions of Sub-section (4) That Sub-section applies the main provision to any suit, whatever its form may be, if such a suit is substantially one for the recovery of a loan or for the enforcement of any agreement. The appellant made the usual application under Order 21, Rule 90 and that application was fought up to this Court in revision. There was then what is a common form of settlement i. e., it was agreed that, if a certain sum was paid within a certain time, the sale would be set aside. The title suit obviously is not a suit to recover the loan. If the decree-holder loses the suit, he will lose both the land and his money. If it were a suit for the enforcement of the agreement, the appellant would have been the plaintiff instead of the defendant.

4. There was some discussion as to whether the decree-holder really took delivery of possession. The Courts below appear to have differed on this point. It is suggested that the title suit was a mere dodge to evade the provisions of the Money-Lenders Act. As that Act was not even in force when the suit was instituted, I am unable to see how that suit can be a dodge to evade its provisions. Suffice it to say that, if the appellant's suit with regard to possession is true, the suit will be dismissed on the merits. The appeal is dismissed; but as the appellant had a good case in view of the decision of Edgley J. when he filed the application, I make no Order as to costs in this appeal. Leave to appeal under Clause 15, Letters Patent is refused; No Order is necessary on the application.


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