SK. MD. ABEL @ ABED Vs. ALTAF HOSSAIN

JUDGEMENT

(1.) This Rule has been obtained under section 25 of the Provincial Small Cause Courts Act, and is directed against an order made by the Small Cause Court Judge at Sealdah dismissing a suit commenced by the petitioner under Sec. 36(1) of the Bengal Money-Lenders Act, 1940.

(2.) The material facts are not in controversy and may be shortly stated as follows. In Jan., 1941, the opposite party instituted a suit against the Court of small Causes at Sealdah for recovery of a sum of Rs. 275.00alleged to be due as principal and interest on a promissory note executed by the latter on June 1, 1948. The petitioners did not appear or contest the suit, and an ex-parte decree was passed in favour of the plaintiff for the entire amount claimed by him on Jan. 27, 1941. On Feb. 17, 1941. the petitioner filed an application for reopening the decree by way of review under Sec. 36(6)(a)(ii)of the Bengal Money-Lenders Act, and the ground alleged was that as the opposite party had already realised more than double the principal amount actually advanced by him, he was not entitled to recover any further amount from the latter. This application was allowed, and the Small Cause Court Judge reopened the ex-parte decree, and made a new decree in accordance with the provisions of the Bengal Money-Lenders Act.

(3.) Against this order the opposite party filed a petition of revision in this Court, and obtained Rule which was heard by my Learned brother Henderson, J., on Nov. 28, 1941. The learned Judge made the Rule absolute and reversed the order made by the Small Cause Court Judge being of opinion that as the suit was instituted after the passing of the Bengal Money-Lenders Act, the defendant petitioner might and ought to have claimed relief under the Act in the suit itself; and this not being done the decision operated as res judicata, and the application for review made under Sec. 36(6)(a)(ii) of the Bengal Money-Lenders Act, was barred. It was further held that the proviso to Sec. 36(1) of the Bengal Money-Lenders Act excluded the operation of the section from cases like this where the decree was passed after the first day of Jan. 1939. The result was that the Rule was made absolute, and the ex-parte decree obtained by the opposite party was affirmed.