CHAMPALAL SETHIA Vs. SUSHIL KUMAR CHAKRAVARTY

JUDGEMENT

(1.) This is the creditor's appeal, arising out of a proceeding under Section 38 of the Bengal Money-lenders Act. The disputed transaction (Ext. 1) was a usufructuary mortgage, purporting to be for a term of 22 (twenty-two) years from 1349 B.S. to 1370 B.S. On May 22, 1954, the mortgagor made an application under the above section for "taking accounts and for declaring the amount due to the lender". The application was opposed by the creditor who is the Appellant before us, but it was ultimately allowed by the learned Subordinate Judge who directed that accounts be taken for the purpose of finding out and declaring the amount due to the creditor. The learned Subordinate Judge also directed that, for the purpose of taking accounts a commissioner be appointed. Against this order the present appeal was filed by the creditor.

(2.) The only point which has been urged in support of the appeal is that Section 38 has no application to usufructuary mortgages particularly when they are for fixed terms as in the present case. That was also the point, raised before the learned Subordinate Judge, and it was rejected by him on the ground that Section 38 is general in its terms and, the relationship between the parties under the usufructuary mortgage (Ext. 1) being one of borrower and lender under Section 2(2) and Section 2(9) of the Bengal Money-lenders Act and the transaction being a loan within the meaning of Section 2(11) of the said Act (vide Shri Ram Charan Sinha Mahapatra and Ors. v. Gopi Nath Kabri and Anr.,1943 48 CalWN 470 the section (Section 38) has undoubted application.

(3.) In view of the language of the section untrammelled by any other consideration,-and, as a matter of fact, no other consideration has actually been placed before us,--we do not think that any other view should be taken as to the rights of the parties on the disputed question. On the merits, therefore, the decision of the learned Subordinate Judge ought to stand.