Skip to content


Naresh Chandra Gupta and ors. Vs. Lal Mamud Bhuiya and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1942Cal379
AppellantNaresh Chandra Gupta and ors.
RespondentLal Mamud Bhuiya and anr.
Excerpt:
- .....instituted a suit on that mortgage and obtained a preliminary decree on 6th december 1930, and a final decree on 14th january 1931. in execution of the mortgage decree the mortgaged property was sold on 22nd june 1933, and the sale proceeds were applied towards payment of the mortgage dues. the sum realized was insufficient to liquidate the dues and on 9th march 1935, the petitioners obtained a personal decree for the balance of ks. 586 odd. the personal decree was put into execution when the opposite parties got the execution case stayed by an application to the debt settlement board. thereafter, they applied for relief under section 36, bengal money-lenders act, on the ground that the interest payable under the mortgage was in excess of that allowed under section 30 of the act and.....
Judgment:

Sen, J.

1. The petitioners in the year 1925 advanced Rs. 1400 to the opposite parties on a mortgage. The interest payable was 15 per cent, per annum with annual rests. They instituted a suit on that mortgage and obtained a preliminary decree on 6th December 1930, and a final decree on 14th January 1931. In execution of the mortgage decree the mortgaged property was sold on 22nd June 1933, and the sale proceeds were applied towards payment of the mortgage dues. The sum realized was insufficient to liquidate the dues and on 9th March 1935, the petitioners obtained a personal decree for the balance of Ks. 586 odd. The personal decree was put into execution when the opposite parties got the execution case stayed by an application to the Debt Settlement Board. Thereafter, they applied for relief under Section 36, Bengal Money-lenders Act, on the ground that the interest payable under the mortgage was in excess of that allowed under Section 30 of the Act and also on the ground that by the decrees the petitioners have obtained more than twice the principal sum advanced. They claim that not only the personal decree but also the preliminary and final mortgage decrees should be reopened and recast. The petitioners resisted the application on several grounds. The learned Subordinate Judge has, I regret to say, dealt with the matter somewhat perfunctorily. He said : 'Prima facie, therefore, there is reason to reopen the mortgage decrees. I hold that the preliminary, final and personal decrees should be reopened ; I direct accordingly.' The questions involved are of some nicety and certainly merit a fuller discussion than that bestowed upon them by the learned Judge. The decree-holders now move against the order deciding to reopen the mortgage decrees.

2. It is not disputed that by the mortgage decrees the opposite parties have been made liable to pay interest at a rate higher than that fixed in Section 30, Bengal Money-lenders Act, and that they have also been made liable to pay more than double the principal sum borrowed. It is further admitted that the suit in which these decrees have been passed is a suit to which the Act applies within the meaning of Section 2(22), Bengal Money-lenders Act, inasmuch as the proceedings in execution of the personal decree are still pending. The petitioners contend that although all the elements necessary to justify the Court in granting relief under Section 36, Bengal Moneylenders Act, appear to be present nevertheless no relief can be granted inasmuch as proviso (ii) to Section 36(1) which prohibits the Court from doing anything which would affect decrees of a certain type operates in this case and protects the decrees passed in their favour from any interference. Their argument is of a two-fold character. Firstly, it is contended that the preliminary and final mortgage decrees cannot be touched as they are decrees which have been fully satisfied prior to 1st January 1939 and therefore protected by proviso (ii) to Section 36. The personal decree, it is admitted, is liable to be reopened as it has not been fully satisfied. The second branch of the argument depends on certain other facts which I now propose to state. After the petitioners obtained their final decree they purchased the mortgaged property in execution of their decree. As they had purchased an undivided share and could not get actual possession, they instituted a partition suit being partition suit No. 166 of 1938 with respect to the property purchased by them, obtained a decree on 28th September 1939, and thereafter took possession of the property. It is pointed out that if the preliminary and final mortgage decrees are interfered with the partition decree : will be affected and it is argued that the proviso mentioned above prohibits the Court from doing anything which would affect such a decree, it not being a decree passed in a suit to which the Bengal Money-lenders Act applies.

3. On behalf of the opposite parties, the argument is that the mortgage decrees do not fall within the protection of the proviso as they were not fully satisfied by 1st January 1939, and that consequently the Court may modify them in order to make them conform to the provisions of the Act. It was further contended in answer to the second branch of the argument that as the Court was not directly interfering with the partition decree the proviso to Section 36(1) had no application. It will be necessary to examine the terms of Section 36 of the Act in order to determine the questions which have been raised. Section 36 is the section which empowers the Court to grant relief to a borrower in the various ways mentioned therein; but there is a proviso to the section which is in the following terms:

Provided that in the exercise of these powers the Court shall not (i).... (ii) do anything which affects any decree of a Court, other than a decree in a suit to which this Act applies which was not fully satisfied by the first day of January 1939, etc.

4. It is clear from the proviso that the Court in granting relief under the Act must refrain from doing anything which would affect a decree of Court. The only exception made is in respect of a decree which has two qualities, viz. : (a) that it has been passed in a suit to which the Act applies and (b) that it was not fully satisfied by the first of January 1939. These two qualities must co-exist otherwise the decree cannot be touched.

5. I now take up for consideration the first branch of the argument addressed to us on behalf of the petitioners, viz., that the mortgage decrees are of the kind protected by the proviso. I shall first examine the preliminary decree. Admittedly, it is a decree passed in a suit to which the Act applies. Can it be said that it was fully satisfied by 1st January 1939? The argument on behalf of the petitioners is that the preliminary decree merely declares the amount due on the mortgage and provides that if the amount is not realised the mortgagee may apply for a final decree and thereafter if the dues are still not satisfied for a personal decree. It is pointed out that in this case both applications have been made and granted before 1st January 1939, and it is suggested that upon the disposal of these applications the power of the preliminary decree is exhausted and the decree is therefore fully satisfied. I am not impressed by this argument. Even assuming that the power of the preliminary decree is exhausted it does not follow from this that it is satisfied. The force of a decree may be exhausted for various reasons other than satisfaction, e.g., it may be exhausted because its execution is barred by limitation. In such a case it cannot be said that the decree is fully satisfied. A decree grants the decree-holder certain rights, it can be said to be fully satisfied only when those rights have been fully realised and not otherwise. Satisfaction means obtaining the fruits of a decree. The preliminary decree not only declares the amount due on the mortgage but it directs the mortgagor to pay that amount : vide Section 5 of Appendix D, Civil P.C. It then goes on to provide that if the amount is not paid the decree-holder may apply for a final decree and thereafter in certain circumstances for a personal decree. The preliminary decree therefore gives the mortgagee the right to realise the amount declared to be due on the mortgage. Until that amount is realised in full either by direct payment by the mortgagor or by the proceeds of the sale of the mortgaged property held in execution of the final decree or by the execution of a personal decree, it cannot be said that the preliminary decree is satisfied. The preliminary mortgage decree in this suit is therefore a decree which was not fully satisfied before 1st January 1939. It is not a decree protected from interference by the proviso mentioned above as it falls within the exception to the proviso and it would have been liable to be reopened were it not for certain other circumstances which I shall presently state.

6. I next take up the final decree for consideration. Can it be said that it was fully satisfied by 1st. January 1939? Long before that date, the mortgaged property was sold in execution of the final decree and the sale proceeds applied towards the liquidation of the mortgage debt. It is also admitted before us that before the aforesaid date, possession was given by the Court to the decree-holder purchaser of the share purchased. The purchase being of an undivided share possession was given in the only way possible, viz., by the planting of a bamboo pole and a declaration by beat of drum. The final decree was merely for sale and for the application of the sale proceeds in a certain manner and for nothing else. All that was granted by the final decree was realised before 1st January 1939, and it seems to me that the decree must be taken to have been fully satisfied before that date. It is therefore a decree which is protected from interference by proviso (ii) to Section 36(1) as it does not possess one of the two qualities which are necessary to bring it within the exception to the proviso.

7. The position therefore is this. The preliminary decree is not protected from interference by the proviso but the final decree is. Now if the preliminary decree is scaled down or otherwise interfered with, the final decree and the sale thereunder must by that very act be set aside. In these circumstances has the Court the power to modify the preliminary decree? Would not the exercise of such power 'affect' the final decree and thereby contravene the terms of the proviso? On behalf of the opposite parties the argument is that only direct interference with a decree is prohibited by the proviso. A reference to the words of the proviso would expose the unsoundness of this argument. The proviso does not merely prohibit direct interference with a decree it says that the Court in granting relief 'shall not do anything which affects any decree of a Court, other than a decree, etc.' The words are very wide and cannot be interpreted as laying down a prohibition against direct interference only. The scaling down of the preliminary decree would most certainly affect the final decree and the sale held thereunder and consequently it would amount to a disregard of the prohibition contained in the proviso. I am of opinion that for these reasons, the preliminary decree cannot be re-opened or scaled down.

8. The second Branch of the argument urged on behalf of the petitioners must also succeed for the same reason. The partition decree is not a decree passed in a suit to which the Bengal Money-lenders Act applies : vide Section 2(22) which describes the meaning of the phrase 'suit to which this Act applies.' It is therefore a decree which is 'protected' and. the Court is prohibited from doing anything which affects such a decree in the exercise of its powers under the Act. If the preliminary decree or final decree is re-opened the decree passed in the partition suit would most certainly be affected as its effect would be nullified and this is prohibited by the proviso to Section 36 mentioned above. For these reasons, I hold that the order of the learned Judge is wrong and must be set aside. The preliminary and final mortgage decrees shall not be re-opened and shall remain unchanged. The personal decree being a decree which was passed in a suit to which this Act applies and which was not fully satisfied before 1st January 1939, is liable to be reopened and scaled down. It is admitted by the petitioners that they are debarred by the provisions of the Bengal Money-lenders Act from obtaining anything more than what they have already realised by the execution of the final decree. The personal decree cannot therefore give them anything more. It is consequently set aside. The rule is made absolute. There will be no order for costs.

B.K. Mukherjea, J.

9. I agree and desire to add a few words. The decision of the question hinges upon the construction to be put upon Section 36, proviso (ii), Bengal Money-lenders Act. That proviso lays down that in exercise of the powers conferred by Section 36 of the Act 'a Court cannot do anything which affects any decree of a Court, other than a decree in a suit to which this Act applies which was not fully satisfied by the 1st day of January 1939....' It is conceded by the learned Advocate for the petitioner that both the preliminary and the final decrees in this ease are decrees in a suit 'to which this Act applies.' The reason is that the personal decree that is obtained under Order 34, Rule 6, Civil P.C., though it is a separate decree, is passed in the mortgage suit itself; and as in the present case, a proceeding in execution of the personal decree was pending, on and after 1st January 1939, the mortgage suit must be regarded as a suit to which this Act applies, as defined in Section 2, Clause (22), Bengal Money-lenders Act. The whole controversy thus centres round the point, as to whether the preliminary and the final decrees for sale were fully satisfied by 1st January 1939. So far as the final decree is concerned, I have no hesitation in holding that it was so satisfied. A final decree for sale directs that the mortgaged property mentioned in the preliminary decree, or a sufficient part of it, be sold and the sale proceeds applied in payment of the amount payable to the plaintiff under the preliminary decree. In case any surplus is left that is to be paid to the defendant or other persons entitled to recover the same : vide Form No. 6, Appendix D, Civil P.C. Here the mortgaged property was sold, and the sale proceeds were applied towards the satisfaction of the mortgage debt long before 1st January 1939. All that could be done under the decree was fully and completely done, and it must be noted that Section 36, proviso (ii), Bengal Money-lenders Act, speaks of satisfaction of the decree and not of the claim. It cannot be disputed, therefore, that the final decree for sale was fully and completely satisfied even if the entire mortgage money was not realised.

10. So far as the preliminary decree is concerned, the position is undoubtedly different. A preliminary decree either directs the taking of accounts by a Commissioner as to what is due to the mortgagee, or the Court itself declares the amount as it finds due, and in either case there is an order on the defendant to pay the sum thus ascertained, or declared due, within a certain time, failing which the plaintiff is given the right to apply for a final decree for sale of the mortgaged property : vide Forms Nos. 5 and 5A, Appendix D, Civil P.C. The preliminary decree further provides that if the money realized by sale of the mortgaged property is not sufficient for payment, in full, of the amount due to the plaintiff, the latter would have the liberty to apply for a personal decree provided such remedy is open to him under the terms of the mortgage instrument, and is not barred by any provision of law. As the preliminay decree directs the defendant to pay a certain amount of money to the plaintiff, it is not certainly satisfied by sale of the mortgaged property, if the sale proceeds fall short of the decretal amount. The preliminary decree can, therefore, prima facie be reopened; but then there is proviso (ii) to Section 36 which says that the Court can do anything which affects any decree of a Court which has not been satisfied by 1st January 1939. If the preliminary decree is re-opened, the Court will have to make a new decree in conformity with the provisions of Section 34 of the Money-lenders Act, and the decree-holder will have to apply for final decree again as laid down in Section 34(a)(ii) of the Act. But that cannot be done, as it would have the effect of annulling the final decree already passed and the sale held thereunder. The preliminary decree, therefore cannot be re-opened.

11. The only decree that can be re-opened and sealed down is the personal decree passed under Order 34, Rule 6, Civil P.C. The personal decree however is only for a residuary sum and rarely carries interest exceeding 6 per cent, per annum. The question then arises, as to how it can be re-opened. For the purpose of determining whether the decree contravenes the provisions of Clauses (1) and (2) of Section 30 of the Act, the Court in my opinion will have to look to the original claim in the mortgage suit and the amount allowed to the mortgagee by the preliminary decree. Although the preliminary decree cannot be amended, the Court will have to calculate the amount that can be allowed to the mortgagee if a new preliminary decree was made. From this, the amount realised by sale of the mortgaged properties should be deducted and for the balance only a personal decree can be passed. If the balance is negative, nothing would be recoverable under the personal decree but the mortgagor cannot claim refund of any amount as that would be doing something which affects the final decree. In the present case the petitioner has expressly given up his claim under the personal decree. The result therefore is that the rule is made absolute. The order of the Court directing the re-opening of the preliminary and the final mortgage decrees is set aside. No order in respect of the personal decree is necessary as the petitioner has abandoned his claim under the same.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //