SASHI KUMAR BANERJEE Vs. D J HILL

JUDGEMENT

(1.) This appeal is at the instance of the representatives of the deceased defendant in a suit tinder Section 36 (1), Bengal Money Lenders Act.

(2.) The plaintiff Mrs. D. J. Hill borrowed two sums of money from the appellants' predecessor in the year 1933. The interest stipulated to be paid was 10 p. e. p. a. with quarterly rests. On 21-6-1939 a suit to enforce the said mortgages was instituted by the appellant's predecessor and a final decree was obtained for a sum of Rs. 20,580. In execution of that mortgage decree the mortgaged properties were brought to sale on 19-7-1940 and were purchased by the decree-holder for a sum of Rs. 43,300. Thereafter the decree-holder auction purchaser took possession on 9-9-1940. On 30-8-1941 the plaintiff instituted the present suit under Section 36(1), Bengal Money-Lenders Act, praying for the requisite reliefs conferred by that section. This suit was dismissed by the learned Subordinate Judge on 30-6-1942. One of the grounds on which the learned Subordinate Judge dismissed the suit was that the case did not come within the purview of Section 36 (1), Bengal Money-Lenders Act, the decree in the mortgage suit having been passed after 1-1-1939 and before the Bengal Money-Lenders Act came into force. The learned Subordinate Judge was also of the opinion that the suit could not proceed in any event unless the surplus sale proceeds fetched at the auction sale held on 19-7-1940 were brought back into Court by the plaintiff, a good portion of the same having been taken away by the creditors of the plaintiff.

(3.) Against this judgment and decree the plaintiff preferred an appeal to this Court being P. A. No. 17 of 1943. This appeal was allowed by this Court on 29-8-1945. This Court was of the opinion that the plaintiff was not disentitled to relief under the Bengal Money-Lenders Act simply because the decree in the mortgage suit was passed after 1-1-1939 and before the Act came into operation. This Court, however, affirmed the view taken by the learned Subordinate Judge that the suit could not proceed unless the surplus sale proceeds were brought into Court. It is necessary to set out a portion of the judgment of this Court which runs as follows :