PRAKASH CHANDRA LAHIRI Vs. PIRATUL CHANDRA LAHIRI

JUDGEMENT

(1.) An objection under section 47 of the Code of Civil Procedure which was registered as Misc. Case No. 49 of 1980 having been dismissed by the learned Subordinate Judge, 9th Court, Alipore by his order dated March 30, 1981, the objector has preferred the present revisional application . The application has been heard on contest by the decree-holder opposite party.

(2.) The opposite party instituted Title Suit No. 92 of 1962 in the same court of the learned Subordinate Judge for recovery of money due on equitable mortgage with interest. The principal amount advanced was admittedly a sum of Rs.20,000/-. On May 28, 1975 the court passed a preliminary decree for a sum of Rs.62137.25 being the sum total of Rs.20,000/- for the principal, Rs.14,000/- for the outstanding interest upto the date of the suit Rs.25670/- for interest pendente lite and Rs.2467.25 for costs. That decree was made final on September 16, 1976 and the court directed sale of the suit properties, namely 1, Sarat Bose Road, Calcutta and application of the sale proceeds for meeting the costs and then for satisfaction of the decretal dues. The decree holder put this decree into execution on February 12, 1976 in Title Execution Case No. 3 of 1977. One amongst the judgment debtors filed an objection under section 47 of the Code referred to above. The objections raised were to the effect that the particulars of the immoveable property and its value had not been fairly set out in the execution petition, that the decree holder's dues had not been correctly calculated, the sale proclamation is materially incorrect, that there were material irregularities in the proceeding for execution, that the preliminary and final decree do not tally with each other. In this objection without any reference to the provisions of the Bengal Money Lenders Act (Bengal Act X of 1940) (hereinafter referred to as the said Act) an objection was raised to the effect that the judgment debtor could not have been made liable for principal and interest for a sum exceeding twice the principal of the original loan and the court granting such a decree exceeding the said limit acted beyond jurisdiction and contrary to law so that the decree under execution is a nullity. The decree holder contested such an objection by filing a rejoinder thereto wherein it was pointed out that the judgment debtor including the objector were throughout abusing the process of the court solely with a view to delay and defeat the plaintiff's legitimate dues. It was pointed out how on different occasions the decree was being reopened under the provisions of Order 9 Rule 13 of the Code at the instance of one or the other of the defendants and how objections now raised particularly in regard to the quantum of interest decreed were never raised at the trial.

(3.) At the hearing of the objection the only ground that was pressed as it appears from the judgment under challenge was to the effect that the amount decreed being more than double the principal sum, such a decree was illegal and beyond the jurisdiction of the court which passed it. The learned Subordinate Judge overruled this objection taking the view that it being a mortgage suit and the law of Dandapat not being recognised in areas beyond the presidency town the decree as passed was not illegal in any manner. He held further that even if it was illegal, that would not render it beyond the jurisdiction of the court passing the decree or render it a nullity. In that view at the Misc. Case was dismissed by the learned Subordinate Judge by the order impugned and feeling aggrieved the objector has preferred the present revisional application.