JITENDRA NATH BERA Vs. MAKHAM LAL BERA

JUDGEMENT

(1.) THIS rule has been obtained by the judgment-debtors and is directed against an order of the Munsif rejecting an application for review under Section 36(6), Bengal Money-lenders Act. The decree was passed on 17 August 1933. It is conceded that it infringes the provisions of the Bengal Moneylenders Act. In the course of Execution Case No. 702 of 1934 a certain property was put up to sale and purchased by the opposite party for Rs. 210 on 6 July 1934. Possession of the property was delivered in August 1935. It may be noted that the judgment- debtors are the sons of the executant of the hand-note upon which the suit was based and the decree is to be executed against such property of their father as may be within their hands. Their mother filed an application under Order 21, Rule 90, Civil P.C., which was pending on 1st January 1939. The question now at issue between the parties is whether in view of that application it can be said that either that application or Execution Case No. 702 of 1934 is a suit to which this Act applies within the meaning of Section 2(22). The learned Munsif held that it was not, because the application was rejected. He thought that if it had been successful, the petitioners would have been entitled to a review. No attempt has been made to support that view here. Now, if it can be said that the application under Order 21, Rule 90 is a suit to which this Act applies or that as a result of it Execution Case No. 702 of 1934 is such a suit, then a judgment-debtor can always make a good case for himself by filing a futile application under this rule. Mr. Mitter conceded that dishonest petition would not have such an effect and argued that it must be a question of fact in each case whether the application is bona fide or not.

(2.) IN my judgment it is impossible to draw any such distinction. Under Section 2 (22), a proceeding in execution is "a suit to which this Act applies;" but proceedings in execution must be proceedings in which the decree-holder asks the Court to assist him to realise the money due under that decree. It is meaningless to say that an application by somebody else to set aside a sale is a proceeding in execution of the decree. It is quite true that, if such an application is successful, the decree-holder will either have to rest content with what he had already got by previous executions or file a new application which will certainly become "a suit to which this Act applies." This is probably what the learned Munsif had in his mind when he gave his, decision. But it affords no ground for saying that an application under Order 21, Rule 90 is "a suit to which this Act applies" or has the effect of turning an old execution case into such a suit. The rule is discharged. I make no order as to costs.