RADHAKANTA PADHI Vs. MDATAUR RAHMAN

JUDGEMENT

(1.) This is an appeal by the decree-holders who are aggrieved by the order of the learned District Judge of Cuttack. by which he remanded the proceedings instituted under the Orissa Money-Lenders Act for consideration on the merits by the Munsif who refused to re-open the decree nor did he think it fit to grant any instalment. The preliminary mortgage decree in this case was passed on 22nd June 1939 and the decree was made final on 11 May 1940. The learned Munsif took the view that as the decree was passed after the Money-Lenders Act came into force in a suit which was brought before the date of the Act he could not re- open the decree under Section 11(1). In so doing the learned Munsif was in error. The crucial date is the date 1 April 1986 and, therefore, the provisions of the Money-Lenders Act have full application. It was argued on behalf of the appellant that the decree cannot be re-opened as Section 11 can only apply where a suit, appeal or proceeding was pending on the date when Secs.10 to 15 came into force. But the answer is that Section 11(2) distinctly provides that where a decree passed by a Court on 1 April 1936 or thereafter is sent to a Court for execution it has authority to exercise all or any of the powers specified in Sub-section (1) of Section 11. The decree in this case was passed after 1 April 1936 and that decree still remains unsatisfied. It had been sent for execution to the Munsif and, therefore, in my opinion, the Munsif had full jurisdiction to exercise all or any of the powers specified in Sub-section (1) of Section 11. In Basudeb Mahapatra v. Surendra Nath Mitra A. I. R. 1942 Pat. 431 Fazl Ali J. (now my Lord the Chief Justice) who delivered the judgment of the Division Bench pointed out, while examining the scheme of the Act specially with regard to Secs.8 to 12, 13, 14, 15 and 16, at page 51 that: These sections when carefully read would appear to be more or less self- contained and I am of the opinion that if it had been intended that Section 10 should apply even after the suit has resulted in a decree and after execution proceedings have been started, there would have been a provision in that section similar to Clause (2) of Section 11. Clause 1 of Section 11 indicates that the provisions as to reopening the transaction, etc. which are made therein, will apply to a suit only, but Clause (2) expressly provides that where a decree remains unsatisfied on the date on which this Act came into force, the Court which passed the decree, or the Court to which a decree is sent for execution, may exercise all or any of the powers specified in Sub-section (1). Now, if we were to construe Section 16 in the manner suggested on behalf of the appellants, Clause 2 of Section 11 would appear to be redundant, and it would also be difficult to understand why a similar provision was not made in Section 10.

(2.) I do not see any substance in the argument on behalf of the appellant. The learned Judge was right in remanding the proceeding to the learned Munsif for consideration on the merits. Costs of this appeal will abide the result and will be disposed of by the learned Munsif. Brough, J.

(3.) I agree.