PROVINCE OF WEST BENGAL Vs. BHOLANATH SEN

JUDGEMENT

(1.) This is an appeal by the Province of Bengal against an order dated 23rd September 1946, passed by Mr. J. P. Mukherjee, learned Subordinate Judge, 2nd Additional Court, District 24 Parganas, dismissing an execution case started by appellant.

(2.) The facts are as follows : Bholanath Sen, predecessor-in-interest of the respondents and Tulsimanjuri Dasi filed a suit in forma pauperis, being Title Suit No. 69 of 1939 against Rajlakshmi Dasi and Nabani Gopal Banerjee. On 31st June 1941, the suit was dismissed and under the pro-visions of Order 33, Rule 11, Civil P. C., a decree for payment of Rs. 2484-12-0 being the court-fees which would have been payable to the Government, had the plaintiff not been permitted to sue as paupers, was passed against the plaintiffs in favour of the Government.

(3.) In 1900 the said Bholanath Sen had borrowed a sum of Rs. 8000 from Jogendranath Das on a mortgage. In 1911, Jogendra sued to enforce the mortgage. The Court, however, pass-ed a money decree in favour of Jogendra. Jogendra preferred an appeal to this Court. On 5th June 1917, this Court allowed the appeal and passed a preliminary mortgage decree. Bholanath Sen preferred an appeal to His Majesty in Council, which was numbered P. C. Appeal No. 126 of 1917. Bholanath Sen deposited 3 1/2 p. c. G. P. Notes of the face value of Rs. 4000 as security for cost of the said Jogendranath Das, in the said P. C. Appeal. The P. C. Appeal was dismissed with costs. On 23rd November 1918, a final mortgage decree for Rs. 43,000 odd was passed in favour of Jogendra. The decree was executed and the mortgaged properties were sold on 6th October 1936 and purchased by the decree-holder Jogendra for Rs. 79,000 the dues of the mortgagee being about Rs. 85,000 on that date. The sale was confirmed on 29th May 1939. The decree-holder auction purchaser took possession through Court on 20th February 1940. The Bengal Money-lenders Act having come into force, the judgment-debtor Bholanath Sen instituted proceedings under the said Act for reopening of the said mortgage decree and for incidental reliefs. On 26th February 1944 the learned Subordinate Judge directed the decree to be reopened and a new preliminary decree for Rs. 43.000 was passed, but no installments were granted. Both Jogendra and Bholanath appealed to this Court. The appeals were disposed of on 26th April 1944 and this Court directed a preliminary decree to be passed for Rs. 28,826 which was made payable in 10 annual installments commencing with 3rd January 1945.