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Purna Chandra Biswas S/O Biswamber Biswas Vs. Sm. Kshiroda Sundari Dutt W/O Upendra Chandra Dutt and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1942Cal610
AppellantPurna Chandra Biswas S/O Biswamber Biswas
RespondentSm. Kshiroda Sundari Dutt W/O Upendra Chandra Dutt and ors.
Cases ReferredPromode Nath Sinha v. Sm. Raseshwari Dassi
Excerpt:
- .....a new decree in a money suit is passed on an application for review under section 36(6), bengal money-lenders act, the court has jurisdiction to allow interest for the period between the passing of the original decree and the passing of the new decree. there is nothing in section 36 of the act itself which confers any such power; but the solution of the question depends upon the extent to which section 34, civil p.c., has been affected by the bengal money-lenders act. on behalf of the debtors it was pointed out that both in an application for review under sub-section (6), and in a suit under sub-section (1) the substantial relief asked for is the reopening of an existing decree, and it was suggested that the data upon which such an order may be made is quite irrelevant for the purpose.....
Judgment:
ORDER

Henderson, J.

1. The question common to all these rules is whether, when a new decree in a money suit is passed on an application for review under Section 36(6), Bengal Money-Lenders Act, the Court has jurisdiction to allow interest for the period between the passing of the original decree and the passing of the new decree. There is nothing in Section 36 of the Act itself which confers any such power; but the solution of the question depends upon the extent to which Section 34, Civil P.C., has been affected by the Bengal Money-Lenders Act. On behalf of the debtors it was pointed out that both in an application for review under Sub-section (6), and in a suit under Sub-section (1) the substantial relief asked for is the reopening of an existing decree, and it was suggested that the data upon which such an order may be made is quite irrelevant for the purpose of calculating interest for the period subsequent to the filing of the suit. This argument would undoubtedly have had force, if Section 34, Civil P.C., only empowered the Court to order interest up to the date of the decree. It however specifically empowers the Court to order further interest from the date of the decree to the date of payment or to such earlier date as the Court thinks fit. Thus, even though the date of the original decree be taken as the date of the decree referred to in Section 34, the Court has power to order interest on account of a subsequent period.

2. It was conceded on behalf of the decree-holders that the wide powers conferred by the Code in this section have to some extent been cut down by the provisions of the Bengal Money-Lenders Act. But I have no hesitation in overruling the suggestion that there is anything in Section 36, Bengal Money-Lenders Act, which by implication abrogates Section 34, Civil P.C. On the contrary, Section 36 begins with the words: 'Notwithstanding anything contained in any law for the time being in force.' Hence the existing laws are only affected to the extent laid down in the section. There is nothing in that section itself to justify an inference that the power of the Court to allow interest for a period subsequent to the decree has been taken away. I accordingly hold that the Court has power to order the payment of interest for the period in dispute. Speaking for myself, I should allow interest for the period at six per cent. per annum less any profit derived by the decree-holder from property taken in execution of the decree, subject to the provision of the Bengal Money-Lenders Act that the total interest paid is not to exceed the principal. It now remains to consider the application of this principle to the individual cases concerned.

Civil Revision Case No. 1414 of 1941.

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3. Civil Revision Case No. 1658 of 1941. -- In this case the learned munsif rejected the application firstly on the strength of the argument put forward by Mr. Bose, with which I have already dealt, and secondly because he thought that the petitioner is an unscrupulous man. Neither of these reasons is a valid reason and the petitioner is undoubtedly entitled to relief. On the principle enunciated above the opposite party is entitled to Rs. 915 on account of principal, Rs. 247 on account of interest up to the date of the suit, Rs. 330 for subsequent interest, in addition to that costs of the suit in execution cases and the present proceedings Rs. 282. Mr. Sen has drawn my attention to the fact that out of the sale proceeds Rs. 449, Rs. 285 was paid to other creditors of the petitioner on rateable distribution. He has also paid a further sum of Rs. 21 on account of another debt of the petitioner. It is obviously right that the opposite party should be reimbursed for these payments. It is clearly impossible to include them as part of the costs of the present proceedings. But I should not be prepared to help the petitioner in revision unless he consented to have these payments incorporated in the new decree. Mr. Guha gave the necessary consent on his behalf. When these sums are included the total inclusive of all costs comes to Rs. 2174. From this must be deducted Rs. 150 on account of the opposite party's share in the sale proceeds of the property purchased by opposite party 3.

4. Then in the second place Mr. Sen pressed me that instalments should only be granted on conditions. The case in Promode Nath Sinha v. Sm. Raseshwari Dassi : AIR1942Cal128 , is an authority for the proposition that conditions may be imposed. The petitioner is undoubtedly a thoroughly unscrupulous man and has resorted to every conceivable device to evade payment of his debts. Bat from the ensuing discussion I have been convinced of the difficulty of imposing any conditions that would be really effective. The best way to test the sincerity of the petitioner is to order fairly substantial instalments. The rule is made absolute. The petitioner's application for review will be allowed. There will be a new decree for Rs. 2074. This will be payable in four annual instalments of Rs. S00, and a fifth instalment of Rs. 74. The first instalment will fall due on 1st October 1942. The petitioner will be restored to possession of the property purchased by the decree-holder, opposite party 2, on 7th October 1939. In default of payment of any instalment opposite party 2 will be put into possession of this property, and the purchase price of Rs. 858 set off against so much of the new decree its remains unsatisfied.

Civil Revision Case No. 983 of 1941.

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