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Ramkumar De S/O Anantlal De Vs. Abhayapada Bhattacharji S/O Bhairab Chandra Bhattacharji - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1942Cal441
AppellantRamkumar De S/O Anantlal De
RespondentAbhayapada Bhattacharji S/O Bhairab Chandra Bhattacharji
Cases ReferredSaradindu Mukherjee v. Jahar Lal Agarwalla
Excerpt:
- .....the judgment-debtor will have his right to come' and apply under section 36(6)(a)(i), bengal moneylenders act.3. as regards the decision in the case in saradindu mukherjee v. jahar lal agarwalla : air1942cal153 it is conceded that the observation of biswas j. was nothing but obiter. as a matter of fact, in that case there was an appeal pending after 1st january 1939, against the decree made by the trial court and consequently as the learned judge himself observed in the judgment it would be a suit to which the act applies within the meaning of section 2 (22), bengal money-lenders act. as the observation was nothing more than obiter, it is not necessary for us to refer the matter to a full bench. the result, therefore, is that in our opinion the mortgage suit was not one to which.....
Judgment:
ORDER

1. This is a rule directed against an order of the Subordinate Judge of Bankura dated 30th June 1941, refusing the petitioner's application for certain reliefs under section 36, Bengal Money-lenders Act. The material facts are not in controversy and may be briefly stated as follows : The opposite party before us advanced moneys on four different mortgages to the present petitioner at different times. There was a suit commenced on the four mortgage bonds on 16th April 1934, and a preliminary decree was passed on 6th June 1933, for a sum of about Rs. 11,212 annas odd. The decree was made final on 15th November 1935 and in execution of the final decree the mortgaged properties were put up to sale and they were purchased by the decree-holder on 25th April 1936. The decree, holder took possession of the properties sometime in July 1936. As the entire decretal amount was not satisfied by the sale of the mortgaged properties, the decree-holder started a proceeding under Order 34, Rule 6, Civil P.C., and got a personal decree on 12th June 1937. In execution of this personal decree, some other properties belonging to the judgment-debtor were sold on 11th November 1937 and they were also purchased by the decree-bolder. After taking possession of these properties on 22nd March 1938, no further steps were taken by the decree-holder in connexion with the personal decree and on 27th February 1941, the present application was made by the judgment-debtor under Section 36, Bengal Money-lenders Act, praying that the decrees passed in the mortgage suit might be re-opened. The application was rejected by the Court on the ground that the suit was not one to which this Act applied as defined in Section 2, Clause (22), Bengal Money-lenders Act. It is the propriety of the decision that has been challenged before us by Mr. Chatterji who appears in support of the rule.

2. We may state at the outset that the learned Judge was apparently labouring under a misapprehension regarding one material fact. The learned Judge thought that the decree-holder had not taken any steps under Order 34, Rule 6, Civil P.C., and no personal decree under that section was obtained. This is certainly a mistake as the facts stated above will show. But Mr. Das appearing on behalf of the opposite party has contended before us that even though that statement is incorrect, yet as there was no proceeding in execution of the personal decree pending on or after 1st January 1939, the mortgage suit could not be deemed to be a suit to which this Act applied. Mr. Chatterji, on the other hand, refers to the decision of Edgley J., in Suresh Chandra v. Lal Mohan : AIR1942Cal121 and argues that so long as the personal decree is not satisfied the suit must be deemed to be pending. It may be pointed out that the opinion expressed by Edgley J., in that case was subsequently approved of in a later decision of a Division Bench to which also Edgley J., was a party : vide Saradindu Mukherjee v. Jahar Lal Agarwalla : AIR1942Cal153 . With reference to the case in Suresh Chandra v. Lal Mohan : AIR1942Cal121 we venture to point out that the report of the case would dearly show that the sale in execution of the final mortgage decree in that case took place on 30th August 1939 that is to say, long after 1st January 1939. The mortgage suit must, therefore, on the admitted facts of that case, be a suit to which the Act applied according to Section 2, Clause (22), Bengal Money-lenders Act, and it was not necessary for our learned brother to go further and say that if the mortgage decree had not been fully satisfied before 1st January 1939, it must be deemed to be a suit to which the Bengal Money-lenders Act, applied. With great respect to Edgley J., we desire to point out that the view taken by him would really go against the plain words of Section 2, Clause (22) of the Act. The wording of that section is perfectly clear and lays down that the expression 'suit to which this Act applies means any suit or proceeding instituted or filed on or after the 1st day of January, 1939, or pending on that date and includes a proceeding in execution.' The suit apparently was neither instituted nor filed nor was pending on or after 1st January 1939. So far as the proceeding in execution is concerned, it was also not instituted or filed at any time after 22nd March 1938. We cannot say that it was pending after that time simply because the decree was still not satisfied. The word 'pending' has a well-recognized meaning and ordinarily it would mean something which still awaits decision and is not yet concluded. If the decision of my learned brother is right, then we are to conceive of the execution case as still pending after 22nd March 1938 although as a matter of fact it was not pending at any time after that. It is true that the Bengal Money-lenders Act, was intended to give relief to borrowers, but at the same time we cannot overlook the plain meaning of the words used by the Legislature. Ordinarily, it seems no injustice will be done unless of course the judgment-debtor wants a refund of the money which he has already paid, for, if any execution proceeding is started later on by the decree-holder, the judgment-debtor will have his right to come' and apply under Section 36(6)(a)(i), Bengal Moneylenders Act.

3. As regards the decision in the case in Saradindu Mukherjee v. Jahar Lal Agarwalla : AIR1942Cal153 it is conceded that the observation of Biswas J. was nothing but obiter. As a matter of fact, in that case there was an appeal pending after 1st January 1939, against the decree made by the trial Court and consequently as the learned Judge himself observed in the judgment it would be a suit to which the Act applies within the meaning of Section 2 (22), Bengal Money-lenders Act. As the observation was nothing more than obiter, it is not necessary for us to refer the matter to a Full Bench. The result, therefore, is that in our opinion the mortgage suit was not one to which this Act applied within the meaning of the Bengal Money-lenders Act, and consequently the Subordinate Judge was right in dismissing the application under Section 36, Bengal Money-lenders Act. The rule is discharged. We make no order for costs. Let the counter-affidavit filed in Court to-day be kept on the record.


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