RANGALAL MANDAL Vs. NARENDRA NATH GHOSE

JUDGEMENT

(1.) In this mortgage suit the plaintiffs obtained the usual preliminary and final decrees for sale. Thereafter on 24 April 1941 those decrees were reopened and a fresh preliminary decree was passed for Rs. 7260 and all costs up to that date to be taxed by the taxing officer of the Court. By Clause (4) of this decree it was ordered and decreed that the defendant do pay into Court to the credit of this suit or to the plaintiffs the said sum of Rs. 7260 and the aforesaid taxed costs awarded to the plaintiffs by five equal annual instalments the first of such instalments to be payable on or before 15 August 1941 (instalment of aforesaid costs being payable upon taxation.) By Clause (5) of this decree it was. further ordered and decreed (inter alia) that in default of payment of any one of the aforesaid instalments or the aforesaid taxed costs plaintiffs may apply to the Court after giving notice to the defendant for a final decree for the sale of the mortgaged property subject to the provisions of the Bengal Money- lenders Act. On 13 August 1941 the defendant paid to the plaintiffs Rs. 1452 being the first instalment payable under the decree. The second instalment of Rs. 1452 fell due on 15th August 1942 but was not paid by the defendant. Plaintiff's costs were taxed on 18th September 1942 and Rs. 1321-10-6 has been allowed. On 6 January 1948 notice under sub- Clause (ii) of Clause (a) of Sub-section (i) of Section 84, Bengal Money-lenders Act, was served on the defendant. A copy of this notice is.an. nexure "b" to the petition. The plaintiffs have now applied for a final decree. This ap. plication is opposed by the defendant- mort gagor on the ground that the notice served as aforesaid did not comply with the requirements of Section 34 (i) (a) (ii). The grounds of ob jection are formulated in para. 10 of the defendant's affidavit in opposition.

(2.) The first objection is that the amount for which default in payment was made on 15th August 1942 has not been correctly shown in the notice. The notice alleges default in payment of instalment of rs. 1980-10-6 payable on 15 August 1942. This is made up of Rs. 1452 (being the second instalment of the sura of Rs. 7260) and rs. 528-10-6 (being two instalments of the taxed costs of Rs. 1321-10-6). The plaintiffs contend that under Clause 4 (i) of the decree Rs. 7260 and taxed costs were payable by five equal annual instalments commencing on 15 August 1941, but as the costs had to be taxed it was provided that the instalment of costs was payable upon taxation. In other words each instalment of costs fell due along with each instalment of claim commencing from 15 August 1941 but as regards the instalment of costs its payment was postponed until taxation. Therefore, on 18 September 1942, when the costs were taxed two instalments, i. e., 2/5 of the taxed costs which fell due on 15th August 1941 and 1942 became at once payable and therefore it was quite proper to include in the notice the total sum of Rs. 1980-10-6 computed as stated above. I do not agree that this is the true meaning of the decree on a proper construction of the terms. In my opinion the true meaning of Clause (4) (i) of the decree is that Rs. 7260 and taxed costs were both payable by five equal annual instalments the first instalment of the claim (rs. 7260) being payable on 15 August 1941 and the first instalment of taxed costs being payable on the date of taxation. This construction appears to me to be more reasonable and appropriate. The debtor cannot pay the costs until the same are ascertained on taxation. The plaintiffs may not get their costs taxed for any length of time. It is unreasonable to hold that the Court intended that the debtor would have to pay several instalments of costs at one and the same time immediately on taxation. This would make the provision for payment by instalment illusory or nugatory. Clause 5 of the decree also makes a distinction between instalment and the taxed costs. The plaintiffs also understood the decree to mean what I have stated, for, in para. 7 of the petition they describe Rs. 1452 as the first instalment payable under the decree. There is no hardship on the plaintiffs if I adopt the construction I have mentioned, for he can expedite the taxation of the costs. Further if the defendant pays the instalments of claim regularly, then there is no hardship if payment of instalment of costs begin from date of taxation and is paid regularly. If the defendant does not pay any of the instalments of claim or any of the instalments of costs, Clause (5) of the decree at once entitles the plaintiffs to apply for a final decree. In my opinion, the plaintiffs included in the notice a larger sum than what was payable by the defendant at the date of the notice.

(3.) The next objection is that the notice is signed by the plaintiff, Ranglal Mondal alone. Under Section 34 (1) (a) (ii) giving of a notice in the form prescribed by rules made under the Bengal Money-lenders Act is condition precedent to the plaintiff's right to apply. If there is one plaintiff and he does not give notice then the application for final decree cannot be made. If there are two plaintiffs and one of them does not give notice, then at least he cannot apply, for he has not fulfilled the condition precedent. It has not been contended that the principle of Order 21, Rule 15 can apply to an application for a final decree for sale under Section 34 (1) (a) (ii). Mr. 8. K. Basu has argued that the requirements of Section 34 have been substantially complied with. He contends that mentioning a wrong amount or a larger amount does not vitiate the notice. According to him the object of the notice is to put the debtor on his guard that the plaintiffs will now proceed to apply for a final decree so that the debtor may get ready with money to prevent the passing of the final decree. He also argued that it is not necessary for both the plaintiffs to sign the notice. The notice is sufficient because it intimates that an application for final decree is going to be "made by us."