1. This Rule was issued at the instance of an attaching creditor and raises a somewhat novel point.
2. The facts are as follows. It appears that opposite party 1, Mrityunjoy Mukherjee, obtained a mortgage decree against opposite parties 2 to 5 who are sons of one Rai Nalinaksha Dutta Bahadur, deceased. That decree was a kind of composite decree passed on 28-7-1934, by consent of parties. The predecessor-in-interest of the petitioner held a money decree against Mrityunjoy and on the strength of that decree he attached the mortgage decree held by his judgment-debtor Mrityunjoy. Thereafter, the judgment-debtor of the mortgage decree made an application under the Bengal Money-lenders Act for reopening the decree and the decree was in fact reopened. A new decree conforming to the provisions of the Bengal Money-lenders Act was passed on 19-11-.1946. I might refer also to another fact which it would be necessary to consider if the second point raised by the petitioner had to be examined but in view of the conclusion at which we have arrived on the first point, it is not really necessary to refer to that fact. I might, however, mention that on 21-11-1946, that is, only two days after the new decree had been passed, it was assigned by the decree-holder Mrityunjoy to opposite party 6, one Gossain Jitendra Chaitanya Bharati. The Rule has been opposed before us only by that opposite party.
3. The application out of which the present Rule has arisen was an application made by the petitioner for having a final decree passed in his own favour on the basis of the new preliminary decree passed on 19-11-1946. He made that application on the footing that his predecessor had attached the old decree and according to him the attachment had attached itself to the new decree when that decree was passed. Accordingly, on the footing of being an attaching creditor of the new preliminary decree, he applied for a final decree in his own favour. Two questions, therefore, arose, namely, (a) whether the attachment of the old decree was at all subsisting and whether it was available against the new decree, and (b) whether assuming the attachment subsisted and was available against the new decree, the petitioner could, as an attaching creditor apply for a final decree to be passed in his favour.
4. The learned Subordinate Judge did not consider the second point, inasmuch as, on the first point he held against the petitioner. The view taken by the learned Judge was that the attachment of the old decree had come to an end as soon as that decree was set aside and reopened under Section 36(1), Bengal Money-lenders Act. The learned Judge added that if the petitioner had purchased some property in execution of the old decree, he would have been protected in respect of that property but he could not possibly contend that his old attachment was subsisting even after the decree attached had been replaced by a new decree, nor that after having gone into suspension for a certain time, the attachment was revived as soon as the new decree was passed. As regards the second point the learned Judge held that since on his finding on the first point, the petitioner had no 'locus standi' to make the application which he had made, the question did not arise, nor could the bona fides of the assignment be investigated at his instance.
5. In support of the Rule it was contended by Mr. Choudhury that the learned Judge had erred in holding that by the process of passing a new decree, the entity of the old decree had been extinguished or destroyed. He referred us to certain observations of the Federal Court in the case of -- 'Bank of Commerce Ltd. Khulna v. Amulya Krishna Basu', 48 Cal W. N. (F.R.) 36 at P. 43 and reminded us that when a decree was reopened under the Money-lenders Act, the parties were not relegated to their rights and liabilities on the original cause of action. Mr. Choudhury laid particular emphasis on the further observation made by the Federal Court that under the Act a decree was reopened only to the extent necessary to substitute the method of account taking sanctioned by the Act in place of the calculation on which the original decree was passed. What Mr. Choudhury contended was that those observations of the Federal Court must be understood to mean that the reopening of a decree did not in any way destroy the entity of the decree as such but consisted merely in substituting one figure for another in respect of the decretal amount. To use Mr. Choudhury's own language, the structure of the decree remained as it was, and what was altered was only the result of accounting.
6. I am altogether unable to accept the contention of Mr. Choudhury as sound. It is perfectly clear from the scheme of the Bengal Money-Lenders Act and particularly from the provisions of Section 36 that when a decree is reopened under those provisions the old decree no longer subsists, but disappears altogether and is either replaced by a new decree or is replaced by nothing at all, if the Court finds that no further sum is payable to the decree-holder. It is perfectly true that when a decree is reopened under the Bengal Money-Lenders Act, the parties are not relegated to their rights and liabilities on the original cause of action. But that only means that the parties are not to be allowed to go over the whole ground once again, and contentions such as that no money was advanced at all or that a part of the money had been repaid or that the suit was not properly constituted could not be urged or entertained. In other words, all disputed questions of fact and law must be treated as having been laid to rest by the findings arrived at the original hearing. But in so far as the quantum of the liability declared against the judgment-debtor is concerned, that is liable to revision and liable to be replaced by a different figure. An attaching creditor, however is concerned only with the monetary liability under a decree. He attaches the decree for the purpose of execution and he attaches either a decree for payment of money or a decree for sale. If that part of the original decree which declares that a certain amount is due from the judgment-debtor to the decree-holder disappears, I cannot see to what a previous attachment will still be clinging and how such attachment can automatically attach itself to the new decree that may be passed.
As I happened to put it in the course of the argument, if the proceedings between the parties were to be taken as a tree, the decree would be the fruit of that tree and when the decree was reopened, the fruit would disappear and if a new decree was passed subsequently, there would be a new fruit on the old tree, but still a new fruit. Figures of speech apart, it seems to me that when a decree attached by a creditor of the decree-holder is reopened under the Bengal Money-Lenders Act the thing attached ceases to exist and it is meaningless to say that even thereafter the attachment subsists and the moment a new decree is passed, it gets attached to that decree. It should be remembered that after a decree is reopened, some interval must elapse before a new decree is passed. If Mr. Choudhury's contention was to be accepted, it would be difficult to say what would become of the attachment which, according to him, would be always subsisting during the interval before the old and the new decrees when there would be no decree in existence at all. It could hardly be said that the attachment would lie in a dormant state, a kind of attachment attached to nothing & that thereafter it would find a local habitation in the new decree that might subsequently be passed. It appears to me that from whatever point of view the matter may be examined, it is impossible to hold that an attachment of an old decree can subsist after the decree is reopened and can be available against the reopened decree. It is noticeable that Sub-section (5) of Section 36, Bengal Money-Lenders Act which protects an assignee and a holder for value, does not extend the protection to an attaching creditor. In my opinion, the first contention of Mr. Choudhury must fail.
7. The other point taken by Mr. Choudhury raises an equally important point, but in view of the conclusion I have arrived at on the first point, it is not necessary to deal with it. Speaking for myself, I have grave doubts as to whether an attaching creditor of a preliminary decree can apply for having a final decree passed in his own favour. But, as I have said, it is not necessary to consider or decide that point in the present case.
8. For the reasons given above this Rule is discharged. But in view of the circumstances, we make no order as to costs.
S.R. Das Gupta, J.
9. I agree.