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Ramasray Singh and ors. Vs. Bibhisan Sinha and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. No. 113 of 1945
Judge
Reported inAIR1950Cal372
ActsBengal Money-lenders Act, 1940 - Sections 38, 38(3) and 88(3); ; Code of Civil Procedure (CPC) , 1908 - Order 41, Rule 22; ;Debt Law
AppellantRamasray Singh and ors.
RespondentBibhisan Sinha and ors.
Appellant AdvocateJajneswar Majumdar and ; Uma Prosad Mookerjee, Advs.
Respondent AdvocateJyotis Chandra Pal, Adv.
DispositionAppeal allowed
Cases ReferredPramatha Nath v. Sanat Kumar
Excerpt:
- .....of money. the appellant ramasray did not file an appeal before the district judge, but he filed a cross-objection in time. in so far as the appeal of the respondent bibhisan singh before him was concerned, the district judge found that he was in fact liable to pay the sum of rs. 1966 and not the sum of rs. 2029 as found by the learned subordinate judge. in so far as the cross-objection filed by the appellant ramasray singh was concerned, the district judge held that the cross-objection was misconceived and that the appellant ramasray singh ought to have filed an appeal before him and in the circumstances he refused to entertain the cross-objection and he dismissed it with costs. it is from that order of the district judge that this appeal has been filed.3. the only point which has been.....
Judgment:

Bachawat, J.

1. This is an appeal from a decree of the District Judge of Darjeeling, dated 9th September 1942.

2. The matter arises out of an application made under Section 38, Bengal Money-lenders Act by the respondent who was the borrower against the appellant. The appellant contested the application and two points arose before the learned Subordinate Judge. The first issue was : 'Is the loan a commercial loan ousting the scope of the Bengal Money-lenders Act, 1940?' The second point was if it was not a commercial loan what should be the amount of the liability of the applicant calculated in accordance with the Bengal Money-lenders Act. The learned Subordinate Judge came to the conclusion that the loan was not a commercial loan and therefore the provisions of the Bengal Money-lenders Act applied. He further held that the applicant-respondent was liable for the sum of Rs. 2029. Eventually by an order dated 25th April 1912 he declared that the debtor was liable to the creditor for the sum of Rs. 2029 and that was the maximum amount that was recoverable by the creditor. An appeal by the applicant-respondent was filed against that declaration before the Court of the District Judge. His contention was that he was liable to pay a much lesser sum of money. The appellant Ramasray did not file an appeal before the District Judge, but he filed a cross-objection in time. In so far as the appeal of the respondent Bibhisan Singh before him was concerned, the District Judge found that he was in fact liable to pay the sum of Rs. 1966 and not the sum of Rs. 2029 as found by the learned Subordinate Judge. In so far as the cross-objection filed by the appellant Ramasray Singh was concerned, the District Judge held that the cross-objection was misconceived and that the appellant Ramasray Singh ought to have filed an appeal before him and in the circumstances he refused to entertain the cross-objection and he dismissed it with costs. It is from that order of the District Judge that this appeal has been filed.

3. The only point which has been argued before us is as to whether the learned District Judge was wrong in refusing to entertain the cross-objection and deciding the objection of the appellant on its merits.

4. Section 38(3), Bengal Money-lenders Act reads as follows:

'A proceeding under this section shall be deemed to be a suit for the purposes of Section 11, Civil P. C., 1908, and a declaration under this section shall be subject to appeal, if any, as if it were a decree of the Court, and every decision in appeal shall be subject to appeal to the High Court in the same manner as a decree passed in appeal.'

5. It is contended by learned advocate appearing on behalf of the respondent that a statutory right of appeal is given under this sub-section and no right of cross-objection is conferred by Section 38 and his contention is that if any litigant is aggrieved by, a decision of any Court under Section 38 his remedy is to file an appeal and not to agitate the matter by way of cross-objection.

6. In this connection, I would like to draw attention to the observations of Viscount Haldane L. C., in National Telephone Co. Ltd. v. Post-Master General (No. 2), (1913) A. C. 646 at p. 552: (82 L. J. K. B. 1197) where he observes as follows:

'When a question is stated to be referred to an established Court without more, it, in my opinion, imports that the ordinary incidents of the procedure of that Court are to attach, and also that any general right of appeal from its decision likewise attaches.'

7. It is to be observed that by Section 38, Bengal Money-lenders Act, a right of appeal is given in express terms. By Sub-section (3) of Section 38, a declaration under that section is to be subject to an appeal, if any, as if it were a decree of the Court. The right of appeal, under that section is given to an established Court, namely, the Court of the District Judge. Nothing is stated expressly in the sub-section as to the procedure regulating such appeal, In our view, where nothing is stated expressly as to the procedure of an appeal before a District Judge, the law will import that the ordinary procedure of that Court on appeal will apply. The ordinary procedure of an appeal is that the respondent has the right to file cross-objection and therefore it is quite clear that the respondent has the right to file a cross-objection.

8. If the appeal before the District Judge was an appeal under the Code of Civil Procedure the whole of Order 41, Civil P. C., would apply to such appeals. It is and mast be conceded that the appeal before the District Judge was under the Code of Civil Procedure. If it were not so, Article 152, Limitation Act, would not apply and there would be no period of limitation applicable to an appeal before the District Judge under Section 38, Bengal Money lenders Act, and in that event the District Judge could treat the cross-objection as an appeal inasmuch as there was no bar of limitation.

9. Learned advocate on behalf of the appellant has also drawn our attention to the case of Pramatha Nath v. Sanat Kumar, 53 C. W. N. (F.R.) 12:(A. I. R. (36) 1949 F.C. 60), The Federal Court there held that although no further right of appeal from the decision of a High Court is expressly given under Section 88 (a), Bengal Money, lenders Act, the question whether an appeal lies in a given case from a declaration made under Section 38(a) is left to be determined by the general Jaw, that is, the provisions of the Civil Procedure Code, and that once a proceeding under Section 38 reaches the High Court, further rights of appeal are governed by the provisions of the Civil Procedure Code. The reasoning of the Federal Court in that matter supports our conclusion. Once a proceeding in appeal has reached the Court of the District Judge the incidents and procedure applicable to that appeal am governed by the provisions of the Code of Civil Procedure. In that view of the matter, once an appeal is filed before the District Judge the respondent will have the right to file a cross-objection.

10. It is further contended by learned advocate on behalf of the respondent that even if Order 41, B 22 applies to the matter before the learned District Judge, even then the appellant had no right to file a cross-objection in this matter.

11. Order 41, Rule 22 reads as follows : 'Any respondent, though he may not have appealed from any part of the decree, may not only support the decree on any of the grounds, decided 'against him in the Court below, bat take any cross-objection to the decree which he could have taken by way of appeal provided he has filed such objection in the appellate: Court within one month from the date of service on him or his pleader of notice of the day fixed for hear-the appeal, or within such further time as the appellate Court may seem fit to allow.'

12. The contention of the learned advocate appearing on behalf of the respondent was that before a party can file cross-objection he must accept some part of the decree as good. If he challenges the whole of the decree in that case according to him the respondent to the appeal has no right to file a cross-objection. In our view that contention is unsound.

13. Order 41, Rule 22 consists of two parts--the first part confers a right upon the respondent to support a decree on any ground decided against him although he may not have appealed from any part of the decree. If the respondent has not appealed or filed any cross-objection he cannot ask the appellate Court to set aside the decree of the lower Court so far as it was against, him but he may support the decree even on a, ground which has been decided against him The second part of Rule 22 gives the respondent a right to file a cross-objection which he could have taken by way of appeal. This right to file a cross-objection is not limited in the way suggested by the respondent. If an appeal is filed the respondent to the appeal without filing any appeal cm take cross objection to the decree on any ground on which he could have filed an appeal.

14. It follows, therefore, that the learned District Judge was wrong in refusing to entertain the cross-objection and dismissing it.

15. The appeal must, therefore, be allowed. The order of the lower appellate Court is set aside and the case is sent back to the lower appellate Court to be heard and decided on the merits in accordance with law. The appellant will have costs of this appeal the hearing fee being assessed at three gold mohurs.

Harries C.J.

I agree.


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