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Ashutosh Basu Vs. Sudhangshubhushan Mukherji - Court Judgment

LegalCrystal Citation
Subject Civil
Decided On
Reported inAIR1931Cal688
AppellantAshutosh Basu
RespondentSudhangshubhushan Mukherji
Cases ReferredRobinson v. Canadian Pacific Ry. Co.
- .....* any person * * * may apply * * * on his depositing in court certain prescribed sums.10. in the recent decision in kalyanee debi v. hari mohan ghosh : air1929cal574 , the learned chief justice had to consider the question of the amount which a mortgagor must deposit under order 21, rule 89, in respect of the sums due to the mortgagee, and as there is no ' amount specified in the- proclamation of sale ' within order 21, rule 89 (1) (b), under the practice of this court, laid down that where a rule cannot be applied exactly it must be applied fairly and reasonably.11. in umeshchandra banerji v. kunjalal biswas : air1930cal685 , lort-williams, j., considered whether a purchaser must pay, in addition to this 5 per cent, loss of interest and costs which he may have incurred. that learned.....

Remfry, J.

1. In this matter Sudhangshubhushan Mukherji, one of the mortgagors, applies for liberty to pay to the Registrar Rs. 1,365-0-0, being 5 per cent of the purchase money in respect of a sale held by the registrar of this Court under a mortgage decree on 11th April 2930. and that thereupon the sale be set aside.

2. It appears that the mortgagees have been paid and that a sum equivalent to 5 per cent of the purchase money was paid in on the last possible day. There wore three purchasers of four lots sold.

3. The only question for decision is whether these purchasers are entitled to anything over and above 5 per cent in their purchase money and of course the return of their deposits. The firm of Chandanmull Indrakumar, purchasers of lots 3 and 4 for Rs. 3,050 and Rs. 2,000, respectively claim in addition to the 5 per cent Rs. 604-13-0 as costs alleged to have been incurred in investigating the title and preparing for the completion of the sale before notice that the mortgagor was applying to set aside the sale.

4. Jumnadas Bagree, the purchaser of lot 1 for Rs. 17,200, claims an unspecified sum for similar costs. The third purchaser did not appear.

5. For the mortgagor it is argued that under Order 21, Rule 89 and Order 34, Rule 5 (2)- that is the amended rule under Act 21 of 1929, Civil P.C., the liability of the mortgagor is limited to 5 per cent.

6. Counsel for the purchasers relied on Ch. 27, Rule 37 of the rules and orders, and said that the matter had been considered recently by this Court, but could not give the reference. I have at last, thanks to the exertions of the Deputy Registrar, obtained a copy of the judgment referred to.

7. In my opinion the rights of the parties to this suit do not come within the provisions of Act 21 of 1929 by which Order 34 was amended, for although that Act came into force on 1st April 1930, by Section 15 (E) of the Act, nothing in the Act shall be deemed to affect anything done in the course of any proceeding pending in any Court on the aforesaid date. The sale was held on 11th April 1930, pursuant to a decree, dated 18th February 1929.

8. I regret that according to the decision of the Court of appeal in Virjiban Dass Moolji v. Biseswar Lal Hargovind A.I.R. 1921 Cal. 169, although the point was decided by Lort-Williams, J., I must consider it. For although I have the greatest respect for the learned Judge, in my opinion it is clear that his decision is erroneous. I must therefore consider the matter.

9. In the case just cited, the Court of appeal laid down the following propositions:

(1) That Order 21, Rule 89 applied to a sale tinder a mortgage decree and to the original side of a Chartered High Court, because it is not one of the rules referred to in Order 49, Rule 3 and because there is no specific provision in the rules framed by this Court under Clause 37, Letters Patent, which justifies the inference that it does not so apply.

(2) That Order 21, Rule 89, lays down that * * any person * * * may apply * * * on his depositing in Court certain prescribed sums.

10. In the recent decision in Kalyanee Debi v. Hari Mohan Ghosh : AIR1929Cal574 , the learned Chief Justice had to consider the question of the amount which a mortgagor must deposit under Order 21, Rule 89, in respect of the sums due to the mortgagee, and as there is no ' amount specified in the- proclamation of sale ' within Order 21, Rule 89 (1) (b), under the practice of this Court, laid down that where a rule cannot be applied exactly it must be applied fairly and reasonably.

11. In Umeshchandra Banerji v. Kunjalal Biswas : AIR1930Cal685 , Lort-Williams, J., considered whether a purchaser must pay, in addition to this 5 per cent, loss of interest and costs which he may have incurred. That learned Judge held that he was bound to pay these sums. As I am unable to follow the learned Judge, I must give my reasons. I have no wish to at-tribute to the learned Judge any reasoning which he did not intend and will: therefore only consider what be said.

12. The judgment begins with a discussion, about the power of a High Court to make rules. Then the learned Judge says that Order 21, Rule 89, is incompatible and inconsistent with the rules of the High Court on the original side, but immediately cites a decision of the Court of appeal, where it was held that it is not and states that he is bound by that decision.

13. Then he states that

the difficulty in applying Order 21, Rule 89, to sales on the original side was recognized by the Chief Justice, in Kalyani Debi v. Hari Mohan Ghosh.

14. A reference to that decision however shows that any difficulty was with reference, not to the rule but to one provision in that rule, with which this ease has no concern. The learned Judge then quotes from the judgment of the learned Chief Justice:

Where owing to the difference between our original side practice and the mufassil practice, which is contemplated in the rule, it is impossible to apply the rule strictly, the Court must apply it as fairly as possible to the circumstances of a sale on the original side.

15. That is a decision of the Court of appeal and binding, but I find nothing in it to justify any idea that where it is not impossible to apply the rule, it is legitimate not to apply it strictly.

16. The learned Judge quotes another decision to the effect that the 5 per cent was given ' partly ' as a solatium to the purchaser for the loss of his bargain. The emphasis on the ' partly ' is mine.

17. Then the learned Judge says:

In many cases, if the 5 per cent is all that the purchaser is entitled to, it would mean that he would not get anything for the loss of his bargain and might be actually out of pocket on account of loss of interest on his money and for costs incurred. It cannot have been intended to give the judgment-debtor a special indulgence at the expense of an innocent third party. 1 am of opinion therefore that the purchaser in addition to the 5 per cent is entitled to be paid by the judgment-debtor any loss of interest and costs which he may have incurred. This conclusion in my opinion is indicated by Order 21, Rule 89 (3), and Order 21, Rule 93.

18. One reason for disagreeing with the conclusion of the learned Judge is that, with the greatest respect for the learned 'Judge, his judgment, in my opinion, conflicts with, among other decisions, the decision of the House of Lords in Vacher & Sons, Ltd. v. London Society of Compositors [1913] A.C. 107.

19. There the House of Lords considered the proper method of interpreting and applying a statute. In this case the rule under consideration is part of an Act, and must be read with the rules; framed by this Court. As I read the speeches, it was unanimously held that the mere fact that the literal meaning of the words used led to an injustice was no ground for disregarding the meaning.

20. Haldane, L.C., said:

In endeavouring to place the proper interpretation on the sections of the statute * * * * I propose * * * * to exclude consideration of everything excepting the state of the law as it was when the statute was passed, and the light to be got from reading it as a whole * * * *Subject to this consideration, I think that the only safe course is to read the language of the statute in what seems to be its natural sense.

21. Lord MacNaghten said:

In the absence of a preamble there can, I think, be only two cases in what it is permissible to depart from the ordinary and natural sense of the words of an enactment. It must be shown either that the words taken in their natural sense lead to some absurdity,

or that in the Act there is something repugnant to or inconsistent with the ordinary meaning of the words used.

22. Lord Atkinson says:

A Court of law has nothing to do with the reasonableness or unreasonableness of a provision of a statute, except so far as it may help it in interpreting what the legislature has said. If the language of a statute be plain, admitting of only one meaning, the legislature must be taken to have meant and intended what it has plainly expressed, and whatever it has in clear terms enacted must be enforced though it should lead to absurd or mischievous results.

23. Lord Shaw says a Court must loyally accept and

plainly expound the simple words employed and must not 'vaporize' them.

24. Lord Moulton says that the consideration of the result of a provision is only-relevant when there are two rival interpretations of the words used.

25. Lord MacNaghten alone supports the theory that absurdity of itself is a sufficient ground for disregarding the natural meaning of the words. But he does not suggest that in the case of an absurdity, the Court can disregard the words used altogether and re-draft the provision. Interpretation cannot go beyond the possible meaning of the words used.

26. In extreme cases, where the words conflict with the obvious intention of the enactment, they may be disregarded, but it must be an extreme case and the words are then construed as meaning nothing.

27. Now turning to the words of the rule nothing could be plainer; there are no rival interpretations of these words. I do not suggest that the learned Judge said that there were or that the result was absurd * * * * if the literal meaning were accepted. But, in my opinion, the rule first provides for the amount of compensation to be deposited by the mortgagor for payment to the purchaser. Obviously, it was desirable to fix the amount precisely; nothing could have been more unreasonable than to include costs which the purchaser might have incurred, for only 30 days are allowed for the deposit. In my opinion, the language is plain and unambiguous and Order 21, Rule 92, shows that this deposit made within a fixed date is the only condition precedent, if the application be granted, which can be exacted before the sale is set aside, as far as the purchaser is concerned.

28. It is immaterial to consider whether the learned Judge regarded the meaning of the rule as a question of interpretation, he was dealing with the provisions of an Act and, in my opinion, dealt with these provisions in a way which is certainly inconsistent with the decision of the House of Lords.

29. The rule is the same as in the previous Code. It occurs in a Code and in an order which deals with costs and interest. Had the legislature been so minded it could have provided for costs and interest. The context of the rule does not support any suggestion that these were overlooked. It is impossible to say that the legislature did not fix the compensation and irrelevant to say that it was fixed at too low a figure. I have considered whether there is any rule which throws any light on the meaning of this rule. The Court of appeal decided that point in 1920 and, as the learned Chief Justice followed the decision recently, there was no new rule modifying this rule at the time of his decision. Since then, there has been no new rule framed under the Letters Patent.

30. The rule has been amended by Act 21 of 1929, which provides that, in the ease of a sale under a decree in a mortgage suit, the purchaser is to receive as compensation, if the sale be set aside in circumstances such as are contemplated in Order 2L, Rule 89, one-fourth of the amount prescribed by that rule.

31. As regards the provisions of Order 21, Rule 89 (3), on which the learned Judge railed, they refer to sums due to the mortgagee. There could be no purchaser at the time when a proclamation of sale was made. Order 21, Rule 93, refers to interest payable by persons to whom the purchase money has been paid, and has nothing to do with a judgment-debtor.

32. Having regard to this amendment, if it was absurd or unjust to fix a sum equivalent to 5 per cent of the purchase money, the legislature has clearly shown that it was intentional. I must confess that, having regard to the fact that the rule extends to all Courts, I see no absurdity in it or in the amended rule.

33. The argument before me that Chap. 27, Rule 37 of the rules and orders applied is not well founded. That rule clearly refers to the case of a sale set aside at the instance of the purchaser for defect in the title of the mortgagor, and entirely different considerations apply to such a case.

34. Further, in my opinion, the conclusion arrived at is contrary to the decision of the Chief Justice. The learned Chief Justice says that the auction-purchaser in the appeal before him thought so highly of his bargain that he was not content with the 5 per cent. That does not suggest that the 5 per cent was obviously so inadequate that it could not have been intended. Then the Chief Justice says that the rule is a concession to the judgment-debtor and is to be applied strictly in cases to which the rule can be applied strictly. There is nothing to show that this was meant to mean strictly only as against the judgment-debtor, and in fact the Chief Justice applied the rule in favour of the judgment-debtor.

35. I am entirely unable to persuade myself that it is legitimate to read a rule which expressly prescribes a fixed sum as meaning that to that sum may be added an unascertained amount or that that result can be arrived at by any other method. As I read the judgment of Lord Hobhouse in Robinson v. Canadian Pacific Ry. Co. [1892] A.C. 481, it may be cited for the proposition that where the conditions are specified it must be taken that they were inserted in the rule for the purpose of showing that no other conditions other than those specified are to stand in the way of the statutory right conferred.

36. In my opinion the High Court has power to make rules inconsistent, if that be necessary, with the rules in the schedule to the Civil Procedure Code. 'That power it derives from the Letters Patent. Unless the High Court frames a rule on the same point, the orders and rules of the Civil Procedure Code apply to the original side save as provided in Order 49. Any 'practice' of the original side inconsistent with the rules of the (Civil Procedure Code which apply, is contrary to law. Where a rule of the Code, owing to the operation of rules framed by this Court, cannot be applied exactly, it must be applied as reasonably as possible. Where it can be applied 'strictly, it must be so applied, and if the {result is unsatisfactory, the Court can {frame a different rule, but unless and until it does so, the rule must be followed, (and cannot be enlarged or altered in any {way by any judicial decision of this Court.

37. Now, turning once more to the rule. 'The words '5 per cent' only occur once. It would be extraordinary if the identical words meant two very different things : one at the time of the deposit and much more, assessed on a different principle, at the time of payment to the purchaser.

38. To justify any such method of construction, there must be something in the rules necessitating so radical a departure from the ordinary way of interpreting the same words in the same Act as meaning the same thing-which rule applies nonetheless where there is only one sentence referred to as a sentence again in an Act.

39. I cannot persuade myself that the words could mean or could be intended {to mean that the mortgagor must deposit one anna more than the prescribed 5 per cent. Nothing but the intractability of the words used in this or some other rule would induce me to interpret them as meaning more than 5 per cent as far as the amount of the deposit is concerned. To my mind, the words clearly express that intention and negative any other. It follows that it is not legitimate to construe them as meaning something more at the time of payment to the purchaser, for there is nothing in the rule or any rule of this Court that supports any such inference.

40. With the greatest respect for the learned Judge, I am unable to follow his ruling, and in my opinion the purchasers in this case are entitled to the 5 per cent-deposited and to nothing more.

41. The mortgagor must pay the costs of the parties who appeared on this motion -that is conceded by counsel for the mortgagor.

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