NARESH CHANDRA GUPTA Vs. LAL MAMUD BHUIYA

JUDGEMENT

(1.) The petitioners in the year 1925 advanced Rs. 1400 to the opposite parties on a mortgage. The interest payable was 15 per cent, per annum with annual rests. They instituted a suit on that mortgage and obtained a preliminary decree on 6 December 1930, and a final decree on 14 January 1931. In execution of the mortgage decree the mortgaged property was sold on 22 June, 1933, and the sale proceeds were applied towards payment of the mortgage dues. The sum realized was insufficient to liquidate the dues and on 9 March 1935, the petitioners obtained a personal decree for the balance of Ks. 586 odd. The personal decree was put into execution when the opposite parties got the execution case stayed by an application to the Debt Settlement Board. Thereafter, they applied for relief under Section 36, Bengal Money-lenders Act, on the ground that the interest payable under the mortgage was in excess of that allowed under Section 30 of the Act and also on the ground that by the decrees the petitioners have obtained more than twice the principal sum advanced. They claim that not only the personal decree but also the preliminary and final mortgage decrees should be reopened and recast. The petitioners resisted the application on several grounds. The learned Subordinate Judge has, I regret to say, dealt with the matter somewhat perfunctorily. He said : "Prima facie, therefore, there is reason to reopen the mortgage decrees. I hold that the preliminary, final and personal decrees should be reopened ; I direct accordingly." The questions involved are of some nicety and certainly merit a fuller discussion than that bestowed upon them by the learned Judge. The decree-holders now move against the order deciding to reopen the mortgage decrees.

(2.) It is not disputed that by the mortgage decrees the opposite parties have been made liable to pay interest at a rate higher than that fixed in Section 30, Bengal Money-lenders Act, and that they have also been made liable to pay more than double the principal sum borrowed. It is further admitted that the suit in which these decrees have been passed is a suit to which the Act applies within the meaning of Section 2(22), Bengal Money-lenders Act, inasmuch as the proceedings in execution of the personal decree are still pending. The petitioners contend that although all the elements necessary to justify the Court in granting relief under Section 36, Bengal Moneylenders Act, appear to be present nevertheless no relief can be granted inasmuch as proviso (ii) to Section 36(1) which prohibits the Court from doing anything which would affect decrees of a certain type operates in this case and protects the decrees passed in their favour from any interference. Their argument is of a two-fold character. Firstly, it is contended that the preliminary and final mortgage decrees cannot be touched as they are decrees which have been fully satisfied prior to 1 January 1939 and therefore protected by proviso (ii) to Section 36. The personal decree, it is admitted, is liable to be reopened as it has not been fully satisfied. The second branch of the argument depends on certain other facts which I now propose to state. After the petitioners obtained their final decree they purchased the mortgaged property in execution of their decree. As they had purchased an undivided share and could not get actual possession, they instituted a partition suit being partition suit No. 166 of 1938 with respect to the property purchased by them, obtained a decree on 28 September 1939, and thereafter took possession of the property. It is pointed out that if the preliminary and final mortgage decrees are interfered with the partition decree : will be affected and it is argued that the proviso mentioned above prohibits the Court from doing anything which would affect such a decree, it not being a decree passed in a suit to which the Bengal Money-lenders Act applies.

(3.) On behalf of the opposite parties, the argument is that the mortgage decrees do not fall within the protection of the proviso as they were not fully satisfied by 1 January 1939, and that consequently the Court may modify them in order to make them conform to the provisions of the Act. It was further contended in answer to the second branch of the argument that as the Court was not directly interfering with the partition decree the proviso to Section 36(1) had no application. It will be necessary to examine the terms of Section 36 of the Act in order to determine the questions which have been raised. Section 36 is the section which empowers the Court to grant relief to a borrower in the various ways mentioned therein; but there is a proviso to the section which is in the following terms: Provided that in the exercise of these powers the Court shall not (i).... (ii) do anything which affects any decree of a Court, other than a decree in a suit to which this Act applies which was not fully satisfied by the first day of January 1939, etc.