PRAFULLA KUMAR DAS GUPTA Vs. KAMINI KUMAR CHAKRAVARTY

JUDGEMENT

(1.) This rule is directed against an order of the Subordinate Judge, Second Court, Comilla, dated 5 November 1941, made on an application presented by the defendant opposite party under Section 36, Bengal Money-Lenders Act. The opposite party borrowed a sum of Rs. 5437 from the Brahmanbaria Loan Co., on a promissory note dated 25 October 1930, agreeing to pay interest at the rate of 12 per cent, per annum. The petitioner before us was a depositor in the aforesaid loan company and had a deposit of Bs. 7000 to his credit with the latter. When this deposit matured, the loan company endorsed over to the petitioner the promissory note executed by the opposite party, in part payment of the deposit. The petitioner as assignee of the promissory note thereupon instituted a suit against the defendant opposite party and got a decree for a sum of Rs. 7390-9-0 together with costs on 10 May 1934. The decree was executed several times and a portion of the decretal dues was realised. The last execution case was started on 26 September 1940, and during the pendency of the same the opposite party made the application for reopening of the decree under Section 36, Bengal Money- Lenders Act. A preliminary point was raised as to whether the petitioner as an assignee of the debt prior to the passing of the Money-Lenders Act was entitled to protection under Section 36 (5) of the Act. The trial Court answered this question in the negative and by its order mentioned above held that the decree was liable to be reopened. It is the propriety of this decision that has been challenged in this rule.

(2.) Mr. Bose who appears for the petitioner has contended before us that the operation of Section 36(5), Bengal Money-Lenders Act, is not confined to post-Act assignees merely and that a pre-Act assignee also comes within its protective provision. This identioal point came up for consideration in several recent cases before this Court but unfortunately the decisions have not been at all uniform. The first pronouncement on the subject was made by Edgley J. in Manmatha V/s. Renula and it was held by the learned Judge that the Bengal Money-Lenders Act imposed the same disabilities upon an assignee of the debt, to whom the assignment was made prior to the Act, as upon the lender himself and such assignment was not protected by Section 36 (5) of the Act. The decision of Edgley J. was set aside on appeal by his Lordship the Chief Justice sitting with Nasim Ali J., vide Manmatha V/s. Renula ( 41) 45 C.W.N. 1091, but though they concurred in setting aside the judgment of Edgley J., they expressed divergent views so far as the present question is concerned. The learned Chief Justice was of opinion-- though he expressly said that it was not necessary to decide the point for purposes of that case--that Section 36(5), Bengal Money-Lenders Act covers a pre-Act assignee whereas Nasim Ali, J. I agreed with Edgley J. in holding that the sub-section was confined to a post-Act assignee. The same divergence of opinion is noticeable in two recent cases which have since been reported. In Bhupendra Nath Dutt V/s. Debendra Nath , Sen J. took the view that Section 36(5) was applicable to assignments made before the Act whereas a contrary decision was given by Roxburgh J. in Krishnadhan V/s. Nalini Chandra ( 41) 46 C.W.N. 38.

(3.) It is not disputed that if the words of Section 36(5), Bengal Money-Lenders Act are given their plain and literal meaning, there is nothing in them which would exclude from their scope a pre-Act assignee.