MRITUNJOY MITRA Vs. SATISH CHANDRA BANERJEE

JUDGEMENT

(1.) The defendant executed in favour of the father of the plaintiff two mortgages in respect of the same property, on 17 July 1923 and 19 June 1925, for Rs. 5000 and Rs. 2000, respectively. Interest was payable at 15 per cent. per annum in respect of the first bond and at 18 per cent, per annum in respect of the second bond according to the stipulations in the bond. The mortgagee thereafter instituted a suit in the Court of the Subordinate Judge at Howrah in the year 1930 for recovery of Rs. 15,500 on the two mortgage bonds. The suit was decreed in full and a preliminary decree was passed on 24 February 1931, for a sum of RS. 19,803-2-0 including interest pendente lite amounting to Rs. 3058-12.0 and costs of the suit amounting to RS. 1244-6-0. The preliminary decree was made final on 30 March 1931. In execution of the final decree, the mortgaged properties were sold and were purchased by the mortgagee for Rs. 10,000 on 8 March 1932. Before the sale the mortgagor paid Rs. 5375 to the mortgagee towards part satisfaction of the decree. The sale was confirmed on 13 August 1932. The mortgagee obtained possession of the properties purchased by him on nth September 1932, through Court. On 26 May 1934, the mortgagee applied for and obtained a personal decree under Order 34, Rule 6, Civil P.C. On 27 March 1935, the mortgagee died leaving the plaintiff as his only heir. This personal decree was put into execution on 2lst May 1937, in Execution case NO. 30 of 1937. On 15 June 1937, this execution case was dismissed for nonprosecution. The personal decree was again put into execution on 18 May 1940, in Execution Case NO. 27 of 1940. This execution ease was again dismissed for default on 11 June 1940. The Bengal Money-lenders Act (Bengal Act 10 of 1940, hereafter called the Act) came into force on 1 September 1940. On 19 November 1940, the defendant applied for review under Section 36 (6) (ii) of the Act. In this application he prayed for the reopening of the preliminary mortgage decree, the final mortgage decree and the personal decree and for certain other reliefs. The Subordinate Judge allowed this application on 30 June 1941 and passed a new preliminary decree under Section 34, Bengal Money-lenders Act. On 4 August 1941, plaintiff appealed to this Court. This appeal came up for hearing before a Division Bench of this Court.

(2.) The question before the Division Bench was whether the Subordinate Judge was right in reopening the preliminary mortgage decree, the final mortgage decree and the personal decree and in passing a new decree under Section 34, Bengal Money-lenders Act. In Naresh Chandra Gupta V/s. Lai Mamud Bhuiya and in Bhabani Prosad Maitra V/s. Satyendra Nath Mukherjee . It was held that the preliminary decree and the final decree could not be re- opened under Section 36 of the Act, but the personal decree was liable to be re-opened. In Abdul Wahed Howladar V/s. Sukumari Debi . it was held that all the three decrees can be re- opened under Section 36 of the Act. On account of this conflict of opinion the following question has been referred to a Full Bench: Where in a suit for the recovery of money lent upon a mortgage, the final decree was executed by the sale of the mortgaged property before 1 Janujary 1939, but a personal decree for the unrealised balance remained unsatisfied on that date, can the Court in exercise of its powers under Section 36, Bengal Money-lenders Act, reopen the preliminary decree and final deoree as well as the personal decree so as to affect all three? The material provisions of Section 36 are these: 36. (1) Notwithstanding anything contained in any law for the time being in force if in any suit to which this Act applies...the Court has reason to believe that the exercise of one or more of the powers under this section will give relief to the borrower it shall exercise all or any of the following powers as it may consider appropriate, namely, shall: (a) reopen any transaction and take an account between the parties.... Provided that in the exercise of these powers the Court shall not.. (ii) do anything whioh 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 1 day of January 1939. (2) If in exercise of the powers conferred by sub section (1) the Court re-opens a decree, the Court (a) shall, after affording the parties an opportunity of being heard, pass a new decree in accordance with the provisions of this Act. (6) Notwithstanding anything contained in any law for the time being in force: (a) the Court which in a suit to which this Act applies passed a decree which was not fully satisfied by the first day of January 1939, may exercise the powers conferred by Sub-section's (1) and (2) (ii) on an application for review of such decree made within one year of the date of the commencement of this Act ....

(3.) From the proviso to Section 36 (1) (a) it is clear that the preliminary and final mortgage decrees and the personal decree can be reopened if (1) they are decrees in a suit to which the Act applies and (2) if they were not fully satisfied by 1 January 1939. The first question for determination, therefore, is whether those three decrees are decrees in "a suit to which the Act applies." Unless there is something repugnant in the context or subject that phrase means any suit or proceeding instituted or filed on or after the first day of January 1939, or pending on that date and includes a proceeding in execution (a) for recovery of a loan. We quote only that portion of the definition as given in Section 2, Clause . 22 of the Act, which is relevant for the case before us. Taking the words of Section 2, Clause 22 the following appear to us to be clear, namely: (a) a suit would be a suit to which the Act would apply if it was instituted after 1 January 1939 or pending on that date: (b) although a suit for recovery of a loan had terminated before that date by the decree being passed it would still be a suit to which the Act would apply if a proceeding in connexion with that suit had been instituted after that date or was pending on that date if the scope of that proceeding was recovery of the loan.