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Kanailal Kundu Vs. Baidyanath Ghose and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.A.O. No. 56 of 1959
Judge
Reported inAIR1962Cal622
ActsDebt Law; ;Bengal Money Lenders Act, 1940 - Sections 1(3), 34 and 34(1); ;Chandernagore Merger Act, 1954 - Section 17; ;Chandernagore (Assimilation of Law) Act, 1955 - Section 3; ;Code of Civil Procedure (CPC) , 1908 - Section 13 - Order 34, Rules 2 and 8
AppellantKanailal Kundu
RespondentBaidyanath Ghose and anr.
Appellant AdvocateM.B. Mallick, ;Rabindra Nath Mitra and ;Mahendra Kr. Ghose, Advs.
Respondent AdvocateRabindra Nath Bhatta, Adv.
DispositionAppeal dismissed
Cases ReferredKrishna Chandra Seth v. Kamalabala Debi
Excerpt:
- .....chandernagore. 2. question in this appeal is whether an application under section 34 of the bengal money lenders art, 1940, could be made for granting instalments for repayment of the loan at the stage of execution proceeding in respect of notary mortgage bond of which grosses copy had been 'granted on the 29th september, 1951. the learned subordinate judge before whom the application was made held that the application could not be entertained under section 34 because in his view the grosses copy must be deemed to have the force of a final decree and the execution proceeding was not in respect of any decree other than a mortgage decree. 3. on appeal the learned district judge held that the application for granting instalments could be made under clause (b) of sub-section (1) of section.....
Judgment:

Amaresh Roy, J.

1. This is a creditor's appeal against an order directing that debtor's applicant under Section 34(1)(b)(ii) be heard on merits. The proceedings arose in Chandernagore.

2. Question in this appeal is whether an application under Section 34 of the Bengal Money Lenders Art, 1940, could be made for granting instalments for repayment of the loan at the stage of execution proceeding in respect of notary mortgage bond of which grosses copy had been 'granted on the 29th September, 1951. The learned Subordinate Judge before whom the application was made held that the application could not be entertained under Section 34 because in his view the grosses copy must be deemed to have the force of a Final Decree and the execution proceeding was not in respect of any decree other than a mortgage decree.

3. On appeal the learned District Judge held that the application for granting instalments could be made under Clause (b) of Sub-section (1) of Section 34. Against this decision the creditor has appealed to this Court.

4. The question whether an application under Section 34 of the Bengal Money Lenders Act, 1940 can be made in such an execution case must, in our opinion, be answered in the affirmative because the execution proceeding is in respect of a document made under the French Law which has the force of decree and is executable as such. It has been held in the Division Bench decision of this Court reported in 63 Cal WN 961 Sourindra Kumar Saha v. Bibhuti Roy that such execution shall be proceeded with under the C. P. Code which was made applicable to Chandernagore by the Chandernagore (Application of Laws) Order, 1950. A question might arise that the present Notarial Bond having come into existence after 2nd May, 1950, on which date the French procedural law was abrogated in Chandernagore it could not be executed directly under Indian C. P. Code without the creditor having brought a suit upon the mortgage. This view found favour in a judgment of a Division Bench of this Court reported in 64 Cal WN 539, Tulsi Charan Surul v. Kangali Charan Pey. But we have already held in our judgment in Krishna Chandra Seth v. Kamalabala Debi, S.M.A. No. 92 of 1958 delivered on 18-8-1960 that the view expressed in 64 Cal WN 539 is obiter dicta and the correct law has been laid down in the earlier Division Bench decision reported in 63 Cal WN 961 which is binding on us. Mr. Mallick contended that the learned District Judge was not right in thinking that Clause (b) of Sub-section (1) of Section 34 was applicable because that clause governs decrees for money and not mortgage decrees which are governed by Clause (a) of Sub-section (1) of Section 34. The Clause (a) of Sub-section (1) also does not apply because, according to Mr. Mallick's argument, what is being executed must be taken to be a Final Decree upon a mortgage suit and not a preliminary decree. Answer to Mr. Mallick's contention in this respect is provided by the language of Clause (b) of Sub-section (1) of Section 34 of the Bengal Money Lenders Act which includes all decrees that are not within Clause (a) of that sub-section and are not limited to decrees for money only. Clause (a) only includes decrees passed under Order 34, Rule 2 or 8 C. P. Code i.e. preliminary Decrees in mortgage suit. It is impossible to say that Notarial Bonds (though they are directly executable) are Preliminary Decrees under Order 34, Rule 2 or 8 C. P. Code. That being so, Clause (b) will be applicable to executions of the Notarial mortgage bond and the decision of the learned District Judge on that point is right.

5. But another point which was overlooked by both the Courts below requires consideration before the point at issue can be disposed of. Clause (b) Sub-section (1) of Section 34 requires that loan shall have been advanced before the commencement of the Bengal Money Lenders Act, 1940. That Act came into force in the territory of Bengal on 1st September, 1940 by a Notification under Section 1(3) of the Act published in Calcutta Gazette dated the 1st August, 1940. But the Notarial Bond in this case was issued on the 29th September, 1951 i.e. long after the Act came into force in Bengal. At that time the territory of Chandernagore was not within the territory in which the Ad came into force and therefore the Act cannot be said to have commenced in Chandernagore on that date. As is well known Chandernagore has been ceded to India by the de facto transfer of power with effect from 2nd May, 1950 and by gradual processes Indian Laws including State Laws of West Bengal have been made applicable to Chandernagore. In that processes by Section 17 of Chandernagore Merger Act, 1954 (Act 36 of 1954) all Laws in respect of subjects within List I (Union List) and List III (concurrent List) of the Seventh Schedule of Constitution of India were brought into force in Chandernagore. This Act came into operation on 2nd October, 1954. There-after West Bengal Ordinance IX of 1954 and West Bengal Act IV of 1955 achieved the same result in respect of West Bengal Laws relating to matters enumerated in List II (State List) of the Seventh Schedule of the Constitution of India with effect from the same date, 2nd October, 1954 which was the 'appointed day' under the West Bengal Act IV of 1955. Therefore, for the purposes of proceedings in respect of Notarial Bonds or Grasses copies of such Bonds in Chandernagore, the Bengal Money Lenders Act, 1940, must be held to have commenced in Chandernagore on 2nd October, 1954 and not before that date. In that view we find support in the observation of Lahiri, J. (as My Lord the Chief Justice then was,) sitting with Guha, J. in the judgment in Civil Rule No. 382 of 1957, delivered on 7-5-1957. Although that was a case under Section 31 of the Money Lenders Act and parties in that case Instead of controverting each other, argued in unison on this particular point, yet legal position was discussed by his Lordship and we find ourselves in agreement with the observations on the point. In the present case, the Notarial Bond that is being executed as a decree was issued on 29th of September, 1951. That being so, by all contemplations it is a loan advanced before the commencement of the Bengal Money Lenders Act in Chandernagore, and, therefore, Clause (b) of Sub-section (1) of Section 34 applies to this case.

6. The other Clause (a) also does not apply as we hold that a Notarial Bond or its Grosses Copy is not a preliminary decree under Order 34 of the C.P.C. The result is that Clause (b) of Sub-section (1) of Section 34 can be applicable: in the present case and, therefore, the application purported to be under Sub-clause (ii) of that section for grant of instalments should be held to be maintainable. For the reasons stated above we affirm the order of the learned District Judge and dismiss the appeal. The application under Section 34 of the Bengal Money Lenders' Act should flow be considered on merits according to law. There will be no order as to costs of this appeal. All interim stay orders stand vacated. No separate order is necessary in respect of the application under Section 115 C. P. Code.

Banerjee, J.

7. I agree.


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