JADU NATH ROY Vs. KSHITISH CHANDRA ACHARJI CHOUDHURY

JUDGEMENT

(1.) To secure two loans, one for Rs. 1,60,000 and the other for Rs. 73,000 the respondents executed in favour of the appellants predecessors-in-interest two mortgages on 16 August 1918. Interest payable was at 8 per cent. per annum with yearly rests. On 10 March 1926 a suit was filed to enforce both the mortgages. A preliminary mortgage decree for Rs. 4,21,851- 1-6 was passed in April 1929 and the final mortgage decree in September of that year. In Execution Case No. 38 of 1930 all the mortgaged properties were sold in lots. They were purchased by the decree-holders for the total sum of Rs. 2,35,200. Those sales were duly confirmed, some in 1932 and the rest in 1935 and the decree-holder purchasers took delivery of possession of the different items of property on different dates ranging from 25 June 1933 to 9 March 1936. On 13 December 1937 they obtained a decree under Order 34, Rule 6, Civil P.C., for the balance due to them, namely for Rs. 3,30,903. That decree was put into execution and some of the personal properties of the mortgagors were sold. They were also purchased by the decree-holders on 8 August 1939 for Rs. 3899. The decree-holders took delivery of possession of those properties on 6 July 1940. On 9 December 1940 the defendants applied for reopening the mortgage decrees as also the personal decree under Section 36, Bengal, Money Lenders Act (10 of 1940). By an order dated 25 August 1941 the learned Subordinate Judge has reopened all those decrees. He passed a new decree for the sum of Rupees 3,76,324-12-6 on 10 May 1943. He has directed the payment of the said sum in 15 equal annual instalments, the first instalment being made payable within "one year of the decision given by the highest tribunal," on the said application made by the mortgagors under Section 36 of that Act and the succeeding instalments to be paid on the anniversary of the first kist. He directed restoration of possession of the properties purchased by the plaintiffs in execution of the reopened-decrees to the defendants. He also directed the defendants to file revenue chalans and other receipts and vouchers showing discharge of all up to date liabilities on account of revenue and cesses along with the instalments as they fall due. In default of payment of any instalment or of submission of the revenue chalans etc., "without reasonable cause" the plaintiffs were to get back possession of the properties purchased by them and the unpaid balance of the new decree was to be set off against the amount at which the properties were purchased. The plaintiffs have filed this appeal against the new decree and the defendants have filed a memorandum of cross objections. None of the parties challenge correctness of the amount for which the new decree has been passed. In support of the appeal the following contentions have been put forward namely, (1) that the Court below had no power under the Money-Lenders Act to reopen the preliminary and final mortgage decrees; (2) that the form of the new decree is bad. It ought to have taken the form of a preliminary mortgage decree and the learned Judge ought to have given the plaintiffs the right to apply for a final mortgage decree if any default was committed by the mortgagors in the payment of instalments or in observing the other conditions. The right to obtain a personal decree ought also to have been reserved in favour of the mortgagees; (3) that the learned Subordinate Judge ought to have fixed definite dates for payment of the instalments, and (4) that he should have made the other conditions definite and precise.

(2.) In support of the cross objections the following points have been pressed: (1) that the instalments ought to have been spread over a longer period; (2) that the lower Court had no power to impose the conditions for due payment of revenue and cesses; and (3) that the learned Judge ought to have allowed the defendants mesne profits (a) for the period beginning from the date when the plaintiffs took possession of the properties they had purchased at the court sales up to the date of the order when the Court passed the order reopening the decrees, and (b) also for the period beginning from the last mentioned date till the date when the defendants would actually get back possession from the plaintiffs. The learned advocate for the defendants further contends that the amount of mesne profits for both those periods should be allowed to be set off against the first and succeeding instalments that may be payable under the new decree. The first point raised by the mortgagees is now concluded by the decision of the Full Bench in Mritunjoy Mitter V/s. Satish Chandra Bannerjee . The learned Subordinate Judge was right in reopening the preliminary and final mortgage decrees as well as the personal decree passed under Order 34 Rule 6, Civil P.C. The second point raised by the plaintiffs and the second and third points raised by the defendants depend mainly upon the effect of Section 36 (2) of the Act. We will consider them together after the first point raised by the defendants.

(3.) The learned Subordinate Judge has found that Rs. 3,76,324-12 6 is payable to the plaintiffs. The correctness of that amount has not been challenged before us by the parties. He has made the sum payable in 15 annual instalments. Each instalment comes to about Rs. 25,088. The evidence is that the defendants have practically no property left to them and they can pay the instalments only out of the income of the properties purchased by the plaintiffs which are to be restored to them by reason of the provisions of Section 36 (2) Clause (c) of the Act. They are not in a position to say what the net annual income of those properties at present would be, for the plaintiffs have been in possession of the bulk of them from 1933 and of the rest at least from 1936. The plaintiffs were in a better position to prove what the net annual income would be but they have not chosen to give any evidence on the point, not even oral evidence. One of the defendants deposed and he said that they could re-pay the decretal amount in the course of 30 years. That evidence is vague and virtually amounts to an expression of opinion. In this state of the evidence, it would have been necessary to remand the case to the lower Court for further investigation as to what the net annual income of the properties purchased by the plaintiffs was, but the learned advocate for the plaintiffs asked us not to remand the case as that course would delay payment to his clients. Ultimately the defendants advocate agreed to the view point of the plaintiffs advocate, and both of them asked us to proceed on considerations based on experience.