TARAPADA BANERJEE Vs. AJIMADDIN MALLIK

JUDGEMENT

(1.) This rule arises out of an application under Section 36, Bengal Money-lenders Act, which was dismissed by the learned Subordinate Judge of Burdwan on the ground that the borrowers were not entitled to any relief. The facts of the case are briefly as follows : One Satya Charan Mukherjee died, leaving a widow, Tulsi Devi, a son, Kamalesh and three daughters. Kamalesh inherited his father's properties, but he died intestate and unmarried, leaving his widowed mother Tulsi Devi as his sole heiress. Tulsi Devi died in Ashar 1341 B.S., and upon her death the properties of Kamalesh devolved on the petitioners as the next reversioners, being the daughters sons of Tulsi Devi. It appears that on 7 July 1920, Tulsi Devi borrowed a sum of Rs. 1500 from the opposite party, Azimuddin Mullick on the security of some of her properties. The loan carried interest at the rate of Re. 1/8 per cent, per month. Later on, on various dates in the year 1924, Tulsi Devi borrowed further sums from the same party and at the same rate of interest aggregating to a total of Rs. 1500. These were unsecured loans on promissory notes. In February 1927, the opposite party instituted two suits for recovery of his dues in respect of both the mortgage and the promissory notes. The mortgage suit was numbered 20 of 1927 and the money suit 21 of 1927. In the money suit a decree was passed on 2lst June 1927, for a sum of Rs. 2473-13-0 inclusive of costs, with interest on the decretal amount at the usual rate of 6 per cent. per annum. The mortgage suit was decreed about a month later, namely on 19 July 1927, for a total sum of Rupees 3324.2.6, inclusive of interest pendente lite and costs. Thereafter it is stated the debts under these decrees were adjusted between the parties, and in lieu thereof on 2 June, 1928 Tulsi Devi executed in favour of the opposite party, a mortgage bond for a sum of Rs. 6313-5-0, which was made up of the amounts due up to that date on account of the said two decrees. There was no provision for payment of interest under this mortgage, but possession of the mortgaged properties was given to the opposite party in lieu of interest and it is not disputed that the opposite party has since remained in possession of the same.

(2.) In 1938, the opposite party instituted a suit to enforce this last mentioned mortgage, being Mortgage Suit No. 11 of 1938, and the total claim was laid at the sum of Rs. 6313.5.0 being the amount of the mortgage debts stated in the bond. A preliminary decree followed in the usual course on 3l March, 1939, for a sum of Rs. 7163.7-0 inclusive of costs, and the decree carried interest at the rate of 6 per cent. per annum. On 5 December of that year, the decree was made final, and thereafter on some date in 1940, the decree-holder put the final decree into execution in Mortgage Execution Case No. 60 of 1940. It is in this execution case that the petitioners as successors-in-interest of the original borrower filed the present application under Section 36, Bengal Money-lenders Act, whereby they sought to re-open the transaction. The application purported to be made under Sub-clause (1) of Clause (a) of Sub- section 6. As already stated, the learned Subordinate Judge who heard the application dismissed it on the ground that the petitioners were not entitled to any relief under the provisions of the Act. It is against this order that this rule has been obtained.

(3.) The first point that arises is whether the application was competent. Sub-section (6) of Section 36, Bengal Money-lenders Act, requires . that in order that the Court may be invited to exercise the powers conferred by Sub-sections (1) and (2), there must be a decree passed by the Court in a "suit to which this Act applies which was not fully satisfied by the 1 day of January 1939." So far as the present decree is concerned, there can be no doubt that it was passed in a suit which was pending on the 1 day of January 1939, because the final decree in the suit was not passed before 5 December of that year. From that point of view, the suit would easily come within the definition of a "suit to which this Act applies," as given in Sub- section (22) of Section 2. It is not, however, quite so clear as to whether the decree can be said to fulfil the other conditions laid down, namely, that it must be a decree "which was not fully satisfied by the 1 day of January 1939." On the face of it, it seems to be difficult to predicate of a decree which ex hypothesi is passed after 1 January 1939, that it was not fully satisfied by that date. Such a description would not only not be apposite, but appear to be wholly meaningless. There can evidently be no question of a decree being satisfied, fully or otherwise, prior to the date on which it is passed. There may be room, therefore, for argument that the present application did not comply with all the requirements of Clause (a) of Sub- section (6), and was not, therefore, a competent application. As this point however, was not raised before us, and as it is possible to dispose of the rule on other grounds, we must reserve for another occasion a final decision on this interesting, but intriguing question as to the correct interpretation of the phraseology employed in el. (a). We shall assume for our present purposes that the application was maintainable, and on that view proceed to consider whether there was any other bar to the granting of relief to the borrowers.