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Sukdev Jee Sankar Jee Madhab Prosad Jee Vs. Ramkrishna Keshab Chandra Laha - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1941Cal537
AppellantSukdev Jee Sankar Jee Madhab Prosad Jee
RespondentRamkrishna Keshab Chandra Laha
Excerpt:
- .....a fresh decree might be made after taking accounts between the parties. this was registered as money suit no. 8 of 1940 and after the defendant petitioner had filed his written statement, issues were framed by the court on 18th february 1941. on that date there was an order passed by the court directing both parties to file affidavits of documents under order 11, rules 12 and 13, civil p.c., within ten days from that date and also to take proper steps for discovery, admission, interrogatories and inspection before the date fixed. in pursuance of this order the petitioner on 1st march 1941, filed a petition for leave to deliver certain interrogatories to the plaintiff opposite party. this matter was directed to be put up for consideration on 12th march following. on 12th march the.....
Judgment:

B.K. Mukherjea, J.

1. In our opinion, this rule should be made absolute. The petitioner before us obtained a money decree against the opposite party in the Court of the First Subordinate Judge at Midnapore for a sum of about Rs. 2,646 odd annas on 7th July 1937. In execution of this decree certain properties belonging to the judgment-debtor were attached and sold in 1938. On 30th August 1940, the opposite party filed a suit in the Court of the same Subordinate Judge, purporting to be one under Section 36 (1), Bengal Money-lenders Act, praying inter alia that the decree might be re-opened and that a fresh decree might be made after taking accounts between the parties. This was registered as Money suit No. 8 of 1940 and after the defendant petitioner had filed his written statement, issues were framed by the Court on 18th February 1941. On that date there was an order passed by the Court directing both parties to file affidavits of documents under Order 11, Rules 12 and 13, Civil P.C., within ten days from that date and also to take proper steps for discovery, admission, interrogatories and inspection before the date fixed. In pursuance of this order the petitioner on 1st March 1941, filed a petition for leave to deliver certain interrogatories to the plaintiff opposite party. This matter was directed to be put up for consideration on 12th March following. On 12th March the plaintiff opposite party filed a petition praying that the suit might be converted into a miscellaneous proceeding in the nature of a review as contemplated by S.36 (6) (a) (ii), Bengal Money-lenders Act. The Court allowed this application and what was described as a suit was now registered as Miscellaneous Judicial Case No. 36 of 1941. On 15th March 1941, the Court passed orders on the application of the petitioner for delivery of interrogatories under Order 11, Civil P.C., and, it rejected that application on the ground that as it was a miscellaneous proceeding and not a suit, Order 11, Civil P.C., was not applicable. It is against this order that the present rule has been obtained.

2. Assuming that the proceeding was really a miscellaneous proceeding, although a suit is expressly contemplated by Section 36 (1), Bengal Money-lenders Act, we do not think that the Court was powerless to administer interrogatories under Order 11, Civil P.C. The scope of enquiry before the Court which is called upon to exercise its powers on an application under S.36 (6) (a) (ii), Bengal Money-lenders Act, is very wide. Like an ordinary application for review of judgment it is not confined to matters dealt with in the judgment itself. The Court can re-open previous transactions and dealings, and direct fresh accounts to be taken; and the proceeding really relates to original matter in the nature of a suit and is not a mere summary proceeding. After all, it is a proceeding in the suit itself and the incidents of the procedure as laid down in the Code of Civil Procedure would attach to such proceeding and can, in our opinion, be availed of by the Court whenever it considers necessary. The result therefore is that the order rejecting the application of the petitioner for delivery of interrogatories is set aside and the case is sent back to the Court below in order that it might consider as to whether it is a proper case to administer interrogatories to the other side, and pass orders accordingly. The rule is thus made absolute and the matter is sent back to be disposed of in accordance with the directions given above. The petitioner is entitled to his costs. We assess the hearing-fee at two gold mohurs.


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