HARIDAS MONDAL Vs. ANATH NATH MITTRA

JUDGEMENT

(1.) (For Himself And Kapur J.) To secure repayment of Rs. 2,500/- Anath Nath Mittra-hereinafter referred to as Mittra-mortgaged four parcels of land to Haridas Mondal-hereinafter referred to as Mondal-by deed dated April 25, 1930. Mondal filed suit No. 18 of 1937 on June 11, 1937, for enforcement of the mortgage in the Court of the 2nd Subordinate Judge, Midnapore, and obtained a preliminary mortgagee decree for Rs. 5,000/- and interest and costs, This decree was made absolute and in execution of the decree, the mortgaged property was sold for Rs. 4,160/- and an amount of Rs. 2,176-6-6 out of the decretal amount remained due and payable under the mortgage decree. Out of the four parcels of land sold, three were purchased by Mondal and the remaining was purchased by Mittra's wife. Mondal then applied for a personal decree under O. 34, R. 6 of the Civil Procedure Code and obtained on September 7, 1940, a decree for payment of Rs. 2,338-15-0 against Mittra. Mondal then applied for executing the personal decree by Misc. Execution Case No. 11 of 1941. In the meanwhile, the Bengal Legislature enacted the Bengal Money-lenders Act, 1940, which enabled the courts in certain circumstances to reopen decrees already passed. Availing himself of this Act, Mitra filed a suit under S. 36 of the Bengal Money-lenders Act for an order for reopening the personal decree. By order dated August 16, 1941, the Subordinate Judge, Midnapore decreed the suit and directed that a new decree for Rs. 1,431-15-0 be drawn up and that the amount due under the personal decree be paid in three annual instalments. Against this decree, an appeal was preferred to the District Court. Midnapore. The District Judge dismissed the appeal and allowed the cross-objections filed by Mondal. In Second Appeal No. 1442 of 1942, the High Court of Judicature at Calcutta set aside the decree of the District Judge and restored the decree of the Subordinate Judge, 2nd Court, Midnapore. Mittra did not pay the amount as directed under the new decree and Mondal applied for executing the decree. Mittra then filed another suit under S. 36 of the Bengal Money-lenders Act in the 2nd Court of the Subordinate Judge, Midnapore, for reopening the decrees preliminary and final passed in the mortgage suit. The Subordinate Judge dismissed this suit as it was, in his view, barred as res judicata. In appeal to the District Court, the decree was confirmed. But the High Court in Second Appeal ordered that the preliminary and final decrees be reopened and the case be remanded to the trial court for passing a fresh preliminary decree. Against the said decree of the High Court, this appeal is filed with special leave.

(2.) Section 30 of the Bengal Money-lenders Act,1940, provides in so far as it is material that notwithstanding anything contained in any law for the time being in force, or in any agreement, no borrower shall be liable to pay after the commencement of the Act a sum in respect of principal and interest which, together with any amount already paid or included in any decree in respect of a loan exceeds twice the principal of the original loan and that the borrower shall not be liable to pay interest at rate per annum in cases of secured loans exceeding 8 per cent. simple. By S. 36, the liability on loans secured or otherwise which contravenes the provisions of S. 30 is liable to be reopened. It is provided by sub-sec. (1) of S. 36 in so far as it is material that notwithstanding anything contained in any law for the time being in force, if in any suit brought by a borrower for relief under this section whether heard ex parte or otherwise, the court has reason to believe that the exercise of one or more of the powers under the section will give relief to the borrower it shall exercise all or any of the powers specified therein as may be considered appropriate. The court is invested with the power of reopening transactions including taking of accounts between the parties, of releasing the borrower of all liability in excess of the limits specified in cls. (1) and (2) of S. 30 and of setting aside either wholly or in part or of revising or altering any security given or agreement made in respect of any loan. Exercise of these powers is subject to the provisos which are not material for the purposes of this appeal. By sub-sec. (2), the court reopening a decree is prohibited from doing anything which affects the rights acquired bona fide by any persons other than the decree-holder in consequence of the execution of the reopened decree; but is enjoined to 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 and also to order the judgment-debtor to pay to the decree-holder in such number of instalments as it may think fit, the whole amount of the new decree passed under cl. (a). The court is further enjoined to direct that in default of payment of any instalments, the decree-holder shall be put into possession of the property which has been restored to the judgment-debtor 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 remained unsatisfied. Sub-section (6) provides that notwithstanding anything contained in any law for the time being in force, the court which, in a suit to which the Act applies, passed a decree which was not fully satisfied by the first day of January 1939, may exercise the powers conferred by sub-secs. (1) and (2) in any proceeding in execution of such decree. Section 36, sub-sec. (1). contemplates the institution of a suit by a borrower for relief under that section and the court is thereby invested with the power of reopening decrees already passed.

(3.) Mittra in the year 1941 filed the suit under S. 36 of the Act for reopening the personal decree passed under O. 34, R. 6 of the Civil Procedure Code. In schedule "A" to the plaint, he set out the principal amount due under the mortgage, the interest at the rate of 8 per cent due thereon from the date of the mortgage till the date of the suit, costs of the suit, and after giving credit for the price realised by sale of the properties, he submitted that Mondal was entitled to recover only Rs. 66-13-2 and that Mondal should be declared entitled to that amount in twenty annual instalments. By a suit under S. 36, Mittra undoubtedly was entitled to reopen the preliminary decree, decree absolute for sale and also the personal decree; but in the first suit, he gave up his right to reopen the preliminary decree and the decree absolute for sale, and was content to obtain an order that the personal decree alone be reopened. In the execution under the mortgage decree one parcel of land was purchased by Mittra's wife and it is presumably on account of this circumstance that Mittra was unwilling to have the preliminary decree reopened. The District Judge, Midnapore, who heard the appeal against the order passed by the 2nd court of the Subordinate Judge in the first suit under S. 36 of the Act observed: