1. This is an appeal against a decree of the District Judge of Murshidabad decreeing a suit under Section 36(1), Bengal Money. Lenders Apt which was dismissed by the trial Court. The original decree was passed in Mortgage Suit No. 6 of 1938 of the Court of the Subordinate Judge of Murshidabad, final decree being passed on 23rd August 1938. The properties were sold on 15th March 1939, for Rs. 1000 only. The decree-holder was the purchaser and he took delivery of possession. There were three properties sold. There was a personal decree for the balance, Rs. 2832 odd, on 19th June.
2. The lower appellate Court has reopened the decree and passed a decree for Rs. 2,478 plus all costs giving ten instalments from March 1946 to March 1955.
3. Of the three properties purchased some portion is in the actual possession of the decree-holder and forms the subject-matter of the prayer for restoration in the suit under Section 36. As regards the rest, there were claim cases which the decree-holder lost. In one case a cosharer succeeded on an allegation that the particular property claimed fell within his allotment. As regards the other claim case the claimant was a purchaser from the mortgagor after the mortgage. The decree-holder has brought a suit to establish his rights in respect of this portion.
4. The main point argued before me is that as the judgment-debtors' claim is for partial restoration of the property purchased and as partial restoration cannot be given, therefore the application should have been rejected. For this proposition reliance is placed on the decision in the case of Ahammad Mea v. Gunu Mia, 51 C. W. N. 922 : (A. I. R. (85) 1948 Cal. 105). That was a case relating to the provisions of Section 36A, Bengal Agricultural Debtors Act, and the decision is to the effect the whole tenor of the provisions of that section shows that the intention is that the judgment-debtor can only claim transfer to himself of the whole property sold. In my opinion, the decision is of no assistance as regards the present case. In fact, the provisions of Section 36(2), Bengal Money-Lenders Act, show, in my opinion, beyond all doubt that there was the clearest intention that partial restoration could be claimed and given. The nature of the procedure provided in that section is quite different from that provided in the Bengal Agricultural Debtors Act. In broad outline the provision is that the judgment debtor may have the decree against him reopened and a new decree made in accordance with the provisions of the Act and where property has been sold the Court 'shall order the restoration to the judgment-debtor of such property, if any, of the judgment-debtor acquired by the decree-holder in consequence of the execution of the reopened decree as may be in the possession of the decree-holder on the date on which the decree was reopened.' (The italics are mine.)
The judgment-debtor is to be directed then to pay the new decretal amount in such number of instalments as the Court thinks fit and if he fails to pay any instalment, then the property restored to him is to be again returned to the decree holder and the judgment-debtor is to be liable for the whole decretal amount less credit for the value of the property purchased by the decree-holder. Here, however, the Legislature appears to have fallen into error and made a somewhat absurd provision. It is necessary to quote the whole of Sub-clause (e):
'If in exercise of the powers conferred by Sub-section (1) the Court reopens a decree, the Court shall direct that, in default of the payment of any instalment ordered under Clause (d) the decree-holder shall be put into possession of the property referred to in Clause (c) and that the amount for which the decree-holder purchased such property in execution of the reopened decree shall be set off against so much of the amount of the new decree as remains unsatisfied'.
Obviously, when the operations mentioned in Clause (e) are performed, then the new position is that there is a new decree for a lesser amount; the decree-holder has all the property he originally purchased in execution of the old decree (less, of course, any properties which he may have disposed of). Clearly the judgment debtor in that position ought to be given credit as against the new decree for the full value of the properties sold at the original sale, that is to say, for the full amount paid for all the properties sold at the original sale. There is no rhyme or reason or sense in providing that in that position the judgment-debtor should receive credit against the new decree for only the value of 'such property' as is 'referred to in Clause (c)', that is to say,
'such property, if any, of the judgment-debtor acquired by the decree holder in consequence of the execution as the reopened decree as may be in the possession of the decree-holder on the date on which the decree was reopened'.
In other words, there is no rhyme or reason why the judgment-debtor in the final position should get credit against the new decree only for the value of the property which happened to be in the possession of the decree-holder at the date of the reopening of the decree and of which restoration was given to the judgment-debtor subject to his paying the instalments and which on his failure to pay the instalments has been returned to the decree-holder. In the final position the decree-holder has all the benefits of the original purchase in execution of the original decree and in that position clearly in all common sense the judgment-debtor should get credit for whatever the decree-holder paid for those properties in the original sale. However, our legislators had slipped and had used the word 'such' as underlined (here italicised) above in the quotation in Clause (e) instead of the word 'the' or perhaps the words 'all the'.
5. Indeed it would appear that the drafts-man had his attention so focussed on the point that he was providing for partial restoration of whatever property of the judgment-debtor might still remain with the decree-holder, that when he came to the final provisions about re-restoration he provided, quite wrongly, for only a partial credit to the judgment-debtor, although the decree-bolder by that stage of the proceedings had received the full benefit of his original purchase.
6. It is then sought to argue, taking advantage of the manifest error in the provision made in Clause (e), that where only partial restoration is possible because the decree-holder has already parted with some of the properties by the time the decree is re-opened, since there is difficulty in saying what is the amount for which the decree-holder purchased any portion of the properties sold in one lot, therefore the whole provisions for partial restoration are nullified. I am not prepared to accept this argument which really is one of redentir ad absurb. The Legislature clearly has made a mistake in the provision it has made in Clause (e) in providing that the judgment-debtor is to get credit only for the value of the property restored to him and again returned to the decree-holder. It is not possible to give any other interpretation to the section than in accordance with the manifest error but the Courts then must estimate in the best way they can what figure is to be given as the amount for which the judgment-debtor has to be credited. The learned District Judge has given the full credit of the purchase price of Rs. 1000. In the present case I estimate the value to be given under the terms of Clause (e) as best as I can at half this amount, Rs. 500.
7. There is no provision in the decree of the lower appellate Court for an application by the decree-holder for a personal decree under Order 34, Rule 6. The decree must be amended to make provision for such an application to be made in the event that there is a failure in payment of the instalments and the property is again returned to the decree-holder.
8. Lastly, I am asked to add as part of the conditions of the payment of instalments a condition that the judgment-debtor will pay the rents and cesses in due time and will file the chalans and dakhilas at least within 3 days of the last date of payment in each case, failure to comply with this condition to be a breach of justifying an order of return to the decree-holder of the property now directed to be restored to the judgment-debtor. This is a reasonable condition in the circumstances and the decree will be amended to provide such a condition.
9. I make no order as to costs.
10. Leave to appeal under Clause (15), Letters Patent is asked for and is refused.