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Bhabani Prosad Moitra and ors. Vs. Satyendra Nath Mukherjee S/O Satish Chandra Mukherjee - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtKolkata
Decided On
Reported inAIR1943Cal372
AppellantBhabani Prosad Moitra and ors.
RespondentSatyendra Nath Mukherjee S/O Satish Chandra Mukherjee
Cases ReferredNaresh Chandra Gupta v. Lal Mamud Bhuiya
Excerpt:
- .....made final on 2nd september 1935 and the amount found due to the mortgagee was rs. 37,633 odd. the final decree was executed in title execution case no. 173 of 1935 of the court of the subordinate judge at suri, and the mortgaged properties were sold on 2nd may 1936 and purchased by the mortgagee deeree-holder himself for as. 25,000. delivery of possession was obtained in july 1937. on 2lst february 1939 the opposite party started a proceeding under order 34, rule 6, civil p.c., and a personal decree for a sum of about rs. 16,000 was passed in his favour on 5th may 1939. the personal decree was put into execution on 10th may 1940. sometime afterwards the bengal money-lenders act came into force, and the decree-holder by an application dated 22nd august 1940 relinquished his entire claim.....
Judgment:

B.K. Mukherjea, J.

1. This rule is directed against an order dated 2nd April 1942 made by the Subordinate Judge, Birbhurn, rejecting an application of the petitioners for re-opening of a mortgage decree under Section 86, Bengal Money-Lenders Act. The facts material for our present purposes lie within a small compass and may be stated as follows : The father of the petitioners took a loan of a sum of Rs. 15,000 from the opposite party on the basis of a mortgage bond executed on 24th January 1920. In the year 1933, the opposite party instituted a suit to enforce the mortgage bond and a preliminary decree was passed on 29th April 1935. The decree was made final on 2nd September 1935 and the amount found due to the mortgagee was Rs. 37,633 odd. The final decree was executed in Title Execution Case No. 173 of 1935 of the Court of the Subordinate Judge at Suri, and the mortgaged properties were sold on 2nd May 1936 and purchased by the mortgagee deeree-holder himself for as. 25,000. Delivery of possession was obtained in July 1937. On 2lst February 1939 the opposite party started a proceeding under Order 34, Rule 6, Civil P.C., and a personal decree for a sum of about Rs. 16,000 was passed in his favour on 5th May 1939. The personal decree was put into execution on 10th May 1940. Sometime afterwards the Bengal Money-Lenders Act came into force, and the decree-holder by an application dated 22nd August 1940 relinquished his entire claim under the personal decree, and the application for execution was dismissed with a direction that it would not be executed any further. On 30th May 1941 an application was presented by the petitioner for review of the mortgage decree under Section 86(6)(a)(ii), Bengal Money-Lenders Act, and the prayer was for re-opening of the preliminary and final decrees and for making a fresh preliminary decree in accordance with the provisions of the Bengal Money-Lenders Act.

2. The learned Subordinate Judge rejected the application, being of opinion that as the sale in execution of the final decree took place long before 1st January 1939 the final decree must be deemed to be satisfied before that date, and consequently could not be reopened under Section 86, Bengal Money-Lenders Act. The only decree which could be reopened was the personal decree made under Order 34, Rule 6, Civil P.C., but as the entire claim under that decree was abandoned by the mortgagee the matter did not require any further investigation. It is the propriety of this decision that has been challenged on behalf of the petitioners in this rule. In rejecting the application of the petitioners for re-opening of the preliminary and final mortgage decrees, the learned Subordinate Judge relied entirely upon a decision of a Division Bench of this Court which is to be found reported in Naresh Chandra Gupta v. Lal Mamud Bhuiya : AIR1942Cal379 . Mr. Bagchi appearing in support of the rule has strenuously contended that law laid down in that decision is not correct, and could not be supported. He has further argued that the facts of the present case are totally different from those in Naresh Chandra Gupta v. Lal Mamud Bhuiya : AIR1942Cal379 and hence do not attract the operation of the principle enunciated in that case. On the other hand, the contention of Mr. Gupta who appeared for the opposite party has been that the case in Naresh Chandra Gupta v. Lal Mamud Bhuiya : AIR1942Cal379 has been rightly decided, although the grounds of the decision might be stated in a manner somewhat different from that adopted in the case itself. The arguments advanced by the learned advocates on both sides have been of considerable as sistance to the Court and they have enabled me to examine and reconsider the decision in Naresh Chandra Gupta v. Lal Mamud Bhuiya : AIR1942Cal379 to which I was a party. In that case it was held that a final decree in a mortgage suit is satisfied, as soon as a sale is held thereunder, and the sale proceeds are applied to the satisfaction of the decree, or where the decree-holder is the purchaser, possession of the property is delivered to him. When a final decree was satisfied in this way prior to 1st January 1939 it could not be re-opened even though a proceeding by way of execution of a personal decree passed in the same mortgage suit, was pending on or after that date. The preliminary decree, it is true, is not satisfied till the amount directed thereby to be paid is realised in full, but as it could not be re-opened without affecting the final decree it could not be re-opened also.

3. Mr. Bagchi argues that a decree is not fully satisfied unless and until the entire claim under the decree has been realised, and it is the non-satisfaction of the final decree by sale of the mortgaged property that furnishes the cause of action for a proceeding under Order 34, Rule 6, Civil P.C. The other branch of Mr. Bagchi's contention is that even if the final mortgage decree be deemed to be satisfied by sale of the mortgaged property, as the preliminary decree admittedly remains unsatisfied, so long as the entire dues of the mortgagee are not realised, the preliminary decree can be reopened and the final decree which is dependent on the preliminary decree and subordinate to it must necessarily suffer variation, if the preliminary decree is modified. The question whether the final decree is satisfied or not is hence altogether immaterial. Both these points require careful examination. Section 36(1), Bengal Money-Lenders Act, empowers the Court to grant relief to the borrower in various ways which are specified in the section. After enumerating the different reliefs which the Court is competent to grant under this sub-section, the Legislature has introduced two provisos which impose certain limitations upon the powers of the Court in this respect. The first proviso is immaterial for our present purposes; the second runs as follows:

Provided that in the exercise of these powers the Court shall not (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 1st day of January 1939....

4. Thus the Court is incapable of giving any relief to the borrower which would affect a decree of a Court, except when the decree was passed in a 'suit to which the Act applies and was not fully satisfied by the first day of January 1939.' The first question that arises for determination is, when is a decree fully satisfied? In my opinion a decree is fully satisfied when the obligation created by it is completely discharged, and the judgment-debtor cannot be compelled in law to do anything further in compliance with its directions. In Naresh Chandra Gupta v. Lal Mamud Bhuiya ('42) 29 A.I.R. 1942 Cal. 379, Sen J. ex-pressed the opinion that a decree could not be deemed to be satisfied simply because its execution was barred by limitation. On the other hand it was held in Tara Pada Banerji v. Ajimuddi Mullick : AIR1941Cal699 that a decree which was time-barred, could be treated as satisfied by operation of the law of limitation and would come under proviso (ii) to Section 36(1), Bengal Money-Lenders Act. In my opinion there is no reason why a restricted meaning should be attached to the expression 'fully satisfied' which occurs in the proviso mentioned above. The object of the Legislature was to put some limitations upon the otherwise plenary powers of the Court to re-open past transactions and past accounts, in the matter of giving relief to borrowers, and one of the limitations is, that decrees which were not outstanding or capable of execution on 1st January 1939, are not to be touched. The whole scheme of the Bengal Money-Lenders Act being to give relief to the borrowers it could not possibly be supposed that, although a decree which was satisfied by payment before 1st January 1939 could not be touched, yet if no payment was made by the judgment-debtor and the decree had become barred by lapse of time it might still be re-opened. I am of the opinion that Proviso (ii) to Section 36(1), Bengal Money-Lenders Act, does not contemplate satisfaction of a decree by payment alone. Whether a decree is fully satisfied or not would depend upon its terms and conditions, and when all that could be done under the decree is fully and completely done and nothing further remains to be done or could be done in law, the decree must be deemed to be fully satisfied. Let us now examine the different decrees that may be passed in a suit to enfore a simple mortgage bond. The first and the principal decree in such suit is undoubtedly the preliminary decree for sale. A preliminary decree for sale either directs that accounts should be taken 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, within a specified time, failing which the plaintiff is given the right to apply for sale of the mortgaged property.

5. The preliminary decree further provides that if the money realised by sale of the mortgaged property is not sufficient for payment in full of the amount due to the plaintiff the latter would apply for a personal decree provided such remedy is open to him under the terms of the mortgage bond and is not barred by any provision of law (vide Forms 5 and 5 (A), Appendix D, Civil P.C.). When the period of grace expires and the money is not paid by the mortgagor, the plaintiff has got to apply for a final decree for sale of the mortgaged property. It is essential in a mortgage decree that the mortgagee decree-holder must in the first instance exercise the right of sale which was transferred to him by the mortgage deed, as a security for the loan, and this he can do only in execution of a final decree for sale. 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 person entitled to receive the same (vide Form No. 6, Appendix D). The form of the final decree for sale will clearly show that it does not itself direct the defendant to pay any money to the plaintiff, it recites that payment directed by the preliminary decree or any subsequent order has not been made, and hence direction is given for sale of the mortgaged property. The only directions contained in the final decree are that the property should be sold and the sale proceeds applied in a particular manner. As soon as these two directions are fully and completely carried out there remains nothing further to be done so far as the final decree is concerned, and the decree in my opinion spends its force and becomes fully satisfied. The explanation attached to proviso 2 of Section 36(1), Bengal Money-Lenders Act, has introduced a slight change in this respect. It provides that when the decree-holder is the purchaser at an execution sale, the decree would not be satisfied so long as proceedings for delivery of possession of the purchased property, if any, are not completed. This explanation obviously applies to final mortgage decrees as well, and the conclusion, in. my opinion, is irresistible, that the final mortgage decree is satisfied under the Bengal Money-Lenders Act, as soon as the sale takes place and the sale proceeds are applied to the satisfaction of the decree and in the event of the purchaser being the decree-holder himself, possession of the property is delivered to him. It would not be correct to say that the final decree for sale is not satisfied if the sale proceeds are not sufficient to pay off the entire mortgage dues. No part of the final decree remains unsatisfied after the sale is completed; what remains unsatisfied is the right of the mortgagee to avail himself of the personalremedy for the purpose of recovering the balance of his dues. A simple mortgage, as its definition shows, consists of two parts. In the first place there is a personal contract on the part of the mortgagor to pay the debt and in the second place there is an agreement empowering the mortgagee to realise his dues by sale of the property mortgaged to him.

6. As I have said already the law requires that the mortgagee should first proceed to exercise his right of sale in respect to the mortgaged property. The form of the preliminary decree as given in Appendix D, Civil P.C., does not contain any direction on the mortgagor to pay the balance of the mortgage money that remains after the sale of the mortgaged property, personally to the mortgagee. It simply reserves to the mortgagee the right to proceed against the mortgagor personally, provided the right was created by the mortgage instrument, and was still subsisting. A clause has now been added by the Calcutta High Court in exercise of its rule-making powers (vide new Clause (3) to Order 34, Rule 4, Civil P.C.), under which the Court in its discretion can incorporate a personal decree against the mortgagor for the balance of the mortgage money that remains unsatisfied by sale of the mortgaged property, in the preliminary decree for sale itself. But whatever that may be, the personal remedy is not one of the reliefs given to a mortgagee by the final decree for sale. That remedy is available to the mortgagee under specific provisions of law, in terms of the preliminary decree or rather the mortgage bond itself, after the proceedings under the final decree are fully exhausted. It is true that it is only when there is a balance left after sale of the property that the personal remedy can be availed of, but it would not be correct to say that it was for further satisfaction of the final decree which remained unsatisfied in spite of the sale, that proceedings under Order 34, Rule 6, Civil P.C., are necessary. In the present case the mortgaged property was sold, and possession of the property delivered over to the decree-holder purchaser long before 1st January 1939. The final decree therefore must be held to be fully satisfied before that date.

7. Let us now turn to the preliminary decree. If the sale proceeds of the mortgaged property are insufficient to pay off the entire amount declared due to the mortgagee by the preliminary decree it cannot be said that the preliminary decree is fully satisfied by sale in execution of the final decree. The mortgagee is still entitled to proceed against the mortgagor personally for realisation of the balance of his dues, and the right may be either reserved by or incorporated in the preliminary decree. I agree with Mr. Gupta that in the usual case where the preliminary decree merely enables the mortgagee to proceed under Order 34, Rule 6, Civil P.C., the preliminary decree remains alive until the proceedings under Order 34, Rule 6, Civil P.C., end in a decree. As soon as the mortgagee obtains a personal decree under Order 34, Rule 6, Civil P.C., the preliminary decree becomes fully satisfied as nothing further remains to be done in pursuance of the same. The personal decree is a new decree in law. As was held by the Court in the Full Bench decision in F.H. Pell. v. M. Gregory : AIR1925Cal834 an application under Order 34, Rule 6, Civil P.C., is an application for a new decree in the suit, and it is not an application for enforcing a judgment or decree within the meaning of Article 183, Limitation Act. After the personal decree is passed, the preliminary decree is completely wiped out, and the only decree that remains executable in law is the personal decree. In Naresh Chandra Gupta v. Lal Mamud Bhuiya : AIR1942Cal379 , the personal decree was obtained by the mortgagee prior to 1st January 1989. It was possible, therefore, to say in that case, that the preliminary decree itself was fully satisfied before the material date.

8. In the case before us the personal decree was passed after 1st January 1939, and consequently it must be held that the preliminary decree was not fully satisfied at that date. The question now is whether the preliminary decree can be re-opened. This takes us to the second branch of Mr. Bagchi's contention. Mr. Bagchi argues that for the purpose of re-opening the preliminary decree it is perfectly immaterial whether the final decree is satisfied or not. The final decree has no independent existence of its own, it is entirely dependent upon and subordinate to the preliminary decree, and if the preliminary decree is altered, the final decree must necessarily be altered. In support of the contention he has placed great reliance upon the Pull Bench decision of our Court in Taleb Ali v. Abdul Aziz : AIR1929Cal689 . In that case it was held that when a preliminary decree is set aside on appeal, the final decree is also superseded, whether the appeal was brought before or after the passing of the final decree. It cannot certainly be disputed that a dependent decree comes to nothing when the decree on which it is dependent is set aside. The appellate Court if it has powers over the preliminary decree has power to affect the final decree as well.

9. The question in the present case however is whether the provisions of the Bengal Money-Lenders Act show that it was the intention of the Legislature, that this principle should be applied when a preliminary decree is re-opened under the Act. A decree is re-opened under the Bengal Money-Lenders Act, only for the purpose of giving relief to borrowers in certain ways which are prescribed in the Act itself. This reopening of the decree for the purpose of scaling down the interest or for giving other reliefs to borrowers is quite a different thing from reversal or modification of the decree by an appellate tribunal. The Legislature on considerations of policy has by the Money-Lenders Act given certain concessions to borrowers, and to what extent and within what limitations these concessions are to be given have got to be gathered from the language of the Act itself. Proviso (ii) to Section 36 (l), Bengal Money-Lenders Act, forbids the Court in clear language to do anything, while giving relief to the borrower, which affects any decree of a Court other than a decree in a suit to' which the Act applies which was not fully satisfied by 1st day of January 1939. There is nothing in the language of the proviso to suggest that a final mortgage decree is not covered by it. A final decree is certainly a decree as defined in Section 2(2), Civil P.C. of 1908. It is no use saying that under the law as it stood prior to 1908, the preliminary decree was the only decree in a mortgage suit and the final decree was the nothing more than an order absolute. I agree with Mr. Gupta that the matter is clinched by the words of the proviso itself. The proviso exempts a decree passed in a suit to which the Act applies which was not satisfied by 1st January 1939. The expression 'suit to which the Act applies' has been defined in the Act (vide Section 2(22)) and it includes a suit or proceeding filed on or after 1st January 1939. The Legislature obviously contemplates that a decree in such a suit could be satisfied before 1st January 1939, and this is possible only in cases like the present, when the suit is pending after 1st January 1939, although a decree passed in the same suit has been satisfied before that date. In my opinion there is nothing in proviso (ii) to Section 36(1), Bengal Money-Lenders Act, to show that it is not applicable to a final decree for sale in a mortgage suit, and there is nothing in the provisions of the Act which go to indicate that the re-opening of the preliminary decree must lead to re-opening of the final decree as well even though the latter was satisfied in full within the meaning of the Act. The preliminary decree is not satisfied, as I have said already, if any proceeding under Order 34, Rule 6, Civil P.C., is pending on or after 1st January 1939, and consequently in the circumstances which have happened in the present case it can be re-opened. But in re-opening the preliminary decree the final decree cannot be touched. It would not be quite right to say that the preliminary decree cannot be re-opened inasmuch as the final decree was satisfied before the material date; the proper way of stating the law would be that the preliminary decree could not be re-opened in such manner as would affect the final decree. That part of the preliminary decree which entitled the mortgagee to have a final decree for sale can no longer be re-opened, and the sale cannot be touched; what can be scaled down and re-adjusted is the other part of the preliminary decree which relates to the personal liability of the mortgagor. Prom what I have said above my conclusions are as follows:

(1) A final decree for sale in a mortgage suit is fully satisfied by the sale of the mortgaged property and the application of the sale proceeds to the payment of the mortgage debt. In case the purchaser is the decree-holder himself it is not fully satisfied till the proceeding for delivery of possession of the property sold is completed. If the final decree is satisfied before 1st January 1939, it cannot be re-opened even if the mortgage debt had not been satisfied in full, and a proceeding under Order 84, Rule 6, Civil P.C., was pending on or after 1st January 1939. (2) A preliminary decree passed in the usual form is not satisfied by sale of the mortgaged property but it becomes satisfied as soon as the personal decree under Order 34, Rule 6, Civil P.C., is obtained, and the only decree that remains executable after that is the personal decree. If a preliminary decree incorporates a personal decree as is contemplated by Clause (3) added to Order 34, Rule 4, Civil P.C., it cannot certainly be satisfied till the personal liability is also satisfied. (3) If a personal decree has been made before 1st January 1989, the preliminary decree must be regarded as satisfied before the date and cannot be re-opened, and the only decree that can be re-opened is the personal decree, provided any proceeding in connexion with the same was pending on or after 1st January 1939. (4) If the personal decree is made after 1st January 1939, the preliminary decree can be re-opened, but it cannot be re-opened in such a way as to affect the final decree for sale already satisfied. The result will be that the sale of the mortgaged property will stand and the personal liability of the mortgagor will be scaled down and re-adjusted. (5) In both the cases coming under paras. 3 and 4 the mode of giving relief to the borrower would be the same. The Court is to look to the original claim in the mortgage suit and the amount decreed to the mortgagee in the preliminary decree, and calculate what the amount should be if a new decree was then made in accordance with the provisions of the Money-Lenders Act. Prom that, the amount realised by sale of the mortgaged property is to be deducted, and for the balance only, if any, a new personal decree should be passed.

10. The last thing that remains for me to notice is a decision of my Lord the Chief Justice sitting with Gentle J. in Abdul Waheb v. Sukumari Debi : AIR1942Cal568 . In that case a final mortgage decree was passed on 13th January 1937, and the sale in execution of it was made absolute on 12th August 1937. The decree-holder auction purchaser took possession in September 1938. Proceedings were then commenced under Order 34, Rule 6, Civil P.C., and these proceedings were pending after 1st January 1939. The trial Court rejected the application for reopening of the mortgage decree on the ground that it could not give any relief to the borrower inasmuch as the new decree that would be passed would be for a larger sum of money. This Court reversed that decision and held that as the, rate of interest contravened the statutory provision, it was the duty of the Court below to re-open the transaction. This particular question, viz., whether the final decree could be re-opened, after it was satisfied by sale of the mortgaged property, and delivery of possession of the property sold to the decree-holder auction purchaser, was not adverted to or considered in the judgment at all. No point seems to have been taken on the second part of proviso (ii) to Section 36(1) and there was no decision on that point. It is represented to us that this ease was heard after the decision in Naresh Chandra Gupta v. Lal Mamud Bhuiya : AIR1942Cal379 was reported, but even if, it were so, the decision does not appear to have been cited before the learned Judges, and it is certainly not noticed and much less dissented from in the judgment. I am therefore unable to hold that the authority of the decision in Naresh Chandra Gupta v. Lal Mamud Bhuiya : AIR1942Cal379 has in any way been shaken by later pronouncements of this Court. The result is that the rule is discharged. We make no order as to costs.

Blank, J.

11. I agree.


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