MRITUNJOY ROY Vs. NETAI CHAND DUTT

JUDGEMENT

(1.) These are two applications under the Bengal Money-lenders Act. The first is by the decree- holders under Section 35 of the Act, while the second is by the judgment-debtors under Section 36 of the aforesaid Act. The applications have been heard together and this order will govern both of them. The plaintiffs obtained a final decree upon two mortgages on 2nd July 1940. This decree affects certain puisne mortgagees as well, but they have not appeared on these applications. The interest specified in the mortgage bonds were 71/2 per cent. and 12 per cent. per annum respectively with quarterly rests. A final decree was passed granting the mortgagees interest at those rates, and interest on judgment at 6 per cent. Thereafter the decree-holders brought the mortgaged premises to sale. The price specified in the sale proclamation of the property was Rs. 44,000. The mortgagee decree-holders obtained leave to bid and bid up to Rs. 38,000 for the property. This was the highest bid. They apply now for confirmation of the sale in accordance with the provisions of Section 35, Bengal Money-lenders Act. The section runs as follows: Notwithstanding anything contained in any other law for the time being in force, the proclamation of the intended sale of property in execution of a decree passed in respect of a loan shall specify only so much of the property of the judgment- debtor as the Court considers to be saleable at a price sufficient to satisfy the decree, and the property so specified shall not be sold at a price which is less than the price specified in such proclamation. Provided that, if the highest amount bid for the property so specified is less than the price so specified, the Court may sell such property for such amount, if the decree-holder consents in writing to forgo so much of the amount decreed as is equal to the difference between the highest amount bid and the price so specified.

(2.) The decree-holders point out that the difference between the price specified and their bid is Rs. 6000 and they consent to deduct this amount from the decretal amount which was then Rs. 42,889-15-6. If the amount of Rs. 6000 is so deducted, the balance is Rs. 36,889-15-6. The decree-holders pray that the sale be confirmed and they be allowed to pay into Court the difference between this sum of Rs. 36,889-15-6 and the highest bid of Rs. 38,000, viz., Rs. 1110-0-6 and take the property in full satisfaction of their claim. This they claim they are entitled to do under Section 35 of the Act. The judgment-debtors oppose this application. They point out that there is no provision in the section which would permit the decree-holders to pay in this sum of Rs. 1110-0-6 into Court and contend that Section 35 can have no application unless the decretal amount is equal to or more than the price specified in the sale proclamation. I do not propose to investigate this matter or give any opinion on it as my decision on the application of the judgment-debtors will result in the sale being set aside.

(3.) The judgment-debtors apply, as I have said before, under Section 36, Bengal Moneylenders Act. They point out, inter alia, that they are entitled to be released from all liability for interest in excess of the limits specified in Section 30 of the aforesaid Act. They contend further that if they are to be released of such liability" the decree will have to be re- opened, and once the decree is re-opened, by virtue of the provisions of Section 36(2) a new decree will have to be passed in terms of Sec. 34. There can be no doubt that the judgment-debtors are entitled to relief under the Bengal Money-lenders Act inasmuch as the interest charged in the mortgage is in excess of that which is allowed under the Act. This claim is not contested. But the decree-holders relying on the case in Suresh Chandra V/s. Lal Mohun and the case in Manmatha Nath Bose V/s. Renula Bose contend that it is not necessary for the Court to re-open the decree in order to grant the relief claimed by the judgment-debtors.