ASGARALI AND OTHERS Vs. DINANATH KUMAR AND OTHERS

JUDGEMENT

(1.) This appeal is on behalf of the plaintiff and arises out of a suit under Section 36, Bengal Money-lenders Act. The suit has been dismissed by the Courts below. The plaintiff now appeals to this Court.

(2.) The facts are more or less admitted and may be stated as follows: On 20th December 1921, the plaintiff borrowed a sum of Rs. 1493 8-0 on a mortgage of certain properties. The interest stipulated to be paid was Rs. 1 per cent. per month. On 7th July 1922, the plaintiff again borrowed a sum of Rs. 995. The interest stipulated Rs. 1-4-0 per cent. per annum with annual rests. A sum of Rs. 408.15 0 was paid by the plaintiff towards the interest due on the aforesaid mortgages. In 1934 the defendants instituted a suit for recovery of the sums due on the said mortgages. The claim was laid at Rs. 1800 on the first mortgage and a sum of Rs. 700 on the second mortgage. No interest was claimed. On 12th February 1936, a preliminary decree was passed in the mortgage suit for a sum of Rs. 2773 9-3 on account of principal, and interest. This sum included the claim in the mortgage suit viz; Rs. 2000 and a sum of Rs. 773-9-0 as interest pendente lite. The decree carried interest at 6 per cent. per annum. On 26th August 1936 a final decree was passed. The mortgagees started execution proceedings in 1939 and the mortgage properties were brought to sale on 21st September 1942. The plaintiff thereafter brought the present suit for relief under Section 36, Bengal Money-lenders Act. As already stated both Courts have dismissed the plaintiff's suit.

(3.) Mr. Roy appearing on behalf of the plaintiff appellant has first contended that after the execution of the mortgages the mortgagees went into possession of Lot No. 8 and certain other lots and profits of these properties should be taken into account. As regards the other lots it appears that the mortgagees purchased the same in execution of a certificate and went into possession. As such, so far as these lots are concerned no question arises as the plaintiff cannot get restoration of possession of these lots, the mortgagees being in possession under independent title. This view is supported by the decision in the case of Kamalakshya Choudhury v. Joychand Lal Babu, 48 C. W. N. 105 since affirmed by the Judicial Committee in the case of Joychand Lal v. Kamalakshay Choudhury, 53 C. W. N, 562 : (A. I. R. (36) 1949 P. C. 239). As regards Lot No. 8, Mr. Roy's contention is that as the defendants-mortgagees possessed the same qua mortgagee in order to find out the same due on the loans the profits received by the defendants mortgagees should be taken into account and if this amount is taken into account it would appear that the mortgage decree was for a sum which exceeded the limits provided for in Section 30, Bengal Money-lenders Act. The case of the defendants mortgagees is that the defendants mortgagees were put in possession not qua mortgagee but in satisfaction of their dues in respect of another loan of Rs. 4000 which was due by the plaintiff to the defendants. In order to establish this fact the defendants relied on the decision on this point in the mortgage suit and submitted that this was res judicata between the parties. Mr. Roy on the other hand, contended that the finding in the mortgage suit on this point is not res judicata because in order to ascertain the principal of the loan the Court has to enquire in this proceeding what sum was really due as principal of the loan. Mr Roy relies on the decision in the case of Provabati Mitra v. Anil Kumar Das, 47 C. W. N. 645 : (A. I. R. (30) 1943 Cal. 629). The facts of that case are somewhat different. In that case in a previous suit the question arose whether a sale of the properties of a minor was justified by legal necessity. The Court in deciding the question of the legal necessity came to the finding that the loan was incurred for purposes of joint family business. Thereafter proceedings were taken under the Bengal Money-Lenders Act. In this proceeding a question arose whether the finding in the previous suit operates as res judioata. This Court held that as the question was not directly and substantially in issue in the earlier suit the finding that the loan was for business purposes was not res judicata. This decision does not therefore touch the present question. On the other hand in the case of Indra Sekhar v. Rati Kanta Haldar, 50 C. W. N. 703 : (A. I. R. (34) 1947 Cal. 447) it has been held that a decision in the mortgage suit which was necessary to sustain the decree in that suit would operate as res judioata in the later proceedings under the Bengal Money-lenders Act. This decision covers the present point. The first contention raised by Mr. Roy must therefore be overruled.