SANO KASHINATH CHOWDHURY Vs. PATITTO SABUTO

JUDGEMENT

(1.) This is an appeal by a judgment-debtor from an order of the learned Subordinate Judge of Berhampore dismissing his application for sealing down a decree under the provisions of the Orissa Money-lenders Act. In the year 1911 the appellant executed a mortgage bond in favour of the respondents for Rs. 14,000. It is said that Rs. 12,000 had been borrowed in cash and the balance of the consideration, namely Rs. 2000, represented interest due on an earlier transaction. The judgment-debtors paid nothing towards the mortgage, and in the year 1926 a mortgage suit was brought for Rs. 45,590. In the year 1928, a preliminary decree was passed, and in the year 1936 the decree was made final. Towards the end of 1938, the decree-holders proceeded to enforce their decree, and on 5 December 1938, the mortgaged property was put up for sale and purchased by the decree-holders themselves for Rs. 60,000. It is to be observed that on this date over one lakh of rupees was due from the judgment-debtor on the mortgage decree. Before confirmation of the sale, the judgment-debtor made an application under the Orissa Money-lenders Act praying the Court to re-open the transaction and to limit the amount of the decree to Rs. 24,000. It was contended that as Rs. 12,000 only was advanced, no sum could be allowed in respect of interest greater than Rs. 12,000. Therefore, it was said, the decree should be reduced to a decree for Rs. 24,000.

(2.) There can be no doubt that the application was made at a very late stage, but even so, the Court below held that it was an application which would have succeeded but for the fact that the Orissa Money-lenders Act had no application whatsoever to this transaction. The Court below held that the decree-holders were not money-lenders as defined by the Act, and therefore the Act had no application to this transaction or to the mortgage decree now sought to be re-opened. The application of the judgment-debtor purported to be made under Secs.10, 11 and 16, Orissa Money-lenders Act. Section 10(1), provides: Notwithstanding anything to the contrary contained in any other law or in anything having the force of law or in any contract, no Court shall, in any suit brought by a money-lender in respect of a loan advanced before or after the commencement of this Act, pass a decree for an amount of interest for the period preceding the institution of the suit which, together with any amount already realized as interest through Court or otherwise, is greater than the amount of the loan originally advanced.

(3.) It is to be observed that in the present case the decree had been passed long before the Orissa Money-lenders Act came into force but Section 10 is made applicable to this case by reason of Section 16 of the Act. In any event this section can only apply in a suit brought by a money-lender. Section 11 deals with the power of the Court to re-open transactions, arid, that section also is limited to cases of suits brought by a money-lender in respect of loans advanced before the commencement of the Act. Section 16 makes the provisions of Secs.10 to 15 applicable to appeals and proceedings in execution arising in respect of decrees passed on 1 April 1936 or-thereafter. It will be seen that all the sections under which this application was made refer to suits by money-lenders, and it is clear that the sections have no application unless the suit is a suit by a moneylender. A "money-lender" is defined in Section 2(4)(j) in these terms: Money-lender means-- (1) Except in Secs.9 to 16, a person who advances a loan in the regular course of business of money-lending with a capital of more than a sum of rupees one thousand, and (2) in Secs.9 to 16, a person who advances a loan in the regular course of business of money-lending irrespective of the amount of capital invested in the said business.