NATH BANK LTD Vs. AMITAVA DAS GUPTA

JUDGEMENT

(1.) These appeals are directed against the judgment of the learned Subordinate Judge, 1st Court, Patna, in a proceeding under Section 47 of the Code of Civil Procedure. The appellant, Nath Bank Ltd., obtained a decree against the respondents, Amitava Das Gupta and Benoy Kumar Sen Gupta, for a sum of Rs. 29,610/5/5 besides interest at the rate of 6 per cent., per annum until realisation. The decree was passed by the High Court of Calcutta in a suit which was numbered as O.T. Suit No. 122 of 1951. The Nath Bank Ltd. brought the suit against the respondents, originally, at Patna on the 3rd March, 1949, which was being tried by the Additional Subordinate Judge as Money Suit No. 17/10 of 1949/1951, on the basis of certain transactions between the parties. The plaintiff, Nath Bank Limited, however, went into liquidation as a result of a petition filed by two of the creditors of the Bank on the 27th of March, 1950. Winding up of the Bank was ordered by the Calcutta High Court under the provisions of Section 162 of the Indian Companies Act, 1913, read with Sections 38 and 39 of the Banking Companies Act 1949. Under Section 39 of the Banking Companies Act, the Reserve Bank of India was appointed the Official Liquidator of the said Bank. The order was dated the 19th of July, 1950-

(2.) The respondents appeared in the suit and raised an objection to its maintainability on the ground of jurisdiction. Evidence was recorded in part. The Reserve Bank of India was thereafter substituted as the plaintiff in place of the Nath Bank Limited. The plaintiff made an application in the Calcutta High Court under Section 11 of the Banking Companies (Amendment) Act, 1950 (Act 20 of 1950) for transfer of the suit pending in Patna to the Calcutta High Court. The records were accordingly transmitted to the Calcutta High Court where the suit was re-numbered, as mentioned before, as Original Trial Suit No. 122 of 1951. The suit was tried there resulting in the decree against the respondents for the aforesaid amount.

(3.) The decree-holder applied for execution of the decree in the Calcutta High Court and prayed for attachment of a house in Patna known as "Ganga Villa" situate in Mohalla Naya Tola, and a precept was accordingly sent to the Court of the District Judge, Patna, by the Calcutta High Court. Sometime after that, it was followed by the transfer of the decree itself to the Court of the District Judge for execution under Section 46 of the Code of Civil Procedure. Later on, the execution case was placed before the Subordinate Judge, before whom a number of objections were raised. Two miscellaneous cases arose out of the objections under Order 21, Rule 58, and Section 151 of the Code of Civil Procedure in which the objectors urged that the property sought to be attached, viz., Ganga Villa, belonged to them. Miscellaneous Case No. 108 of 1958 was started on the objection filed by Smt. Tripti Basu and Miscellaneous Case No, 5 of 1959 on the objection by Rabindra Nath Basu, On the 19th May, 1959, both these applications were dismissed. On the 3rd June, 1959, respondents Amitava Das Gupta filed an application under Section 47 of the Code of Civil Procedure on the ground that the decree sought to be executed was null and void and as such incapable of execution. Hence, the execution case was fit to be dismissed. That gave rise to Miscellaneous Case No. 55 of 1959. On the 6th April, 1960, one Devasis Gupta also filed a petition under Order 21, Rule 58, of the Code of Civil Procedure, claiming that he had an interest in the property "Ganga Villa" and that Amitava Das Gupta and Benoy Kumar Sen Gupta, against whom decree was passed, had no right, title or interest in the house known as "Ganga Villa" and, therefore, it should be released from attachment. That was disposed of on the 30th of August. 1960. Amitava Das Gupta filed a further objection in the execution case which gave rise to Miscellaneous Case No. 20 of 1960, in which he alleged that the plaintiff suppressed an important fact in the suit in so far as it did not disclose that the loan which was obtained by the respondents was secured by hypothecation of the goods belonging to M/s. Dossenta, a firm functioning in Calcutta, and the judgment-debtors were neither proprietors nor in partnership of the firm, but mere agents That firm belonged to another person, Sachi Prasad Sen Gupta. A plea of limitation was also brought in by way of amendment on the 6th of August, 1960. The objection of the judgment-debtors under Section 47 of the Code of Civil Procedure, however, succeeded and the learned Subordinate Judge has held that the decree passed by the Calcutta High Court was null and void and as such incapable of execution. He has also held that the decree was barred by limitation when the execution was taken out and as such the execution was to be dismissed even on this ground. The decree-holder has challenged the correctness of the decision of the Court below on both the grounds.