HAREKRISHNA MAHANTY Vs. PURI BANK LTD

JUDGEMENT

(1.) This is a judgment-debtors appeal from the decision of the learned District Judge of Ganjam Puri, dated 7 December 1940. The facts out of which the appeal has arisen are the following: The ancestors of the judgment debtors- appellants had borrowed Rs. 1200 from the Puri Bank on the basis of a mortgage bond of 14 April 1909, the stipulated rate of interest being 15 per cent, per annum. On 4 February 1926, the Bank brought a suit which was finally decreed for Rs. 2200 odd on 12 January 1927. On 14 December 1928 the judgment- debtors executed a fresh mortgage bond for Rs. 1920, the stipulated rate of interest being 18 per cent, per annum. Before the execution of this second mortgage bond the mortgaged properties had been sold, and 17 December 1928 was the date fixed for confirmation of the sale. By the execution of the fresh mortgage bond, the previous execution case relating to the earlier decree was dismissed on satisfaction. In 1930 the Bank brought another suit on the basis of the mortgage bond of 1928. There was a preliminary decree on 24 November 1931 followed by a final decree on 6 August 1932. The decree was put in execution and the mortgaged property was sold and purchased by the Bank for Rs. 650. Then, on 18 May 1936, the Bank obtained a personal decree under Order 34, Rule 6, Civil P. 0., for a sum of Rs. 3300 odd. The personal decree was put in execution for recovery of a sum of Rs. 4000 odd, with a prayer for attachment and sale of other immovable properties of the judgment-debtors. The judgment- debtors applied before the executing Court for reliefs under the provisions of the Orissa Money-Lenders Act. The executing Court held that both Secs.10 and 11, Orissa Money-Lenders Act, applied, and the judgment-debtors were entitled to relief under the provisions of those two sections. In that view of the matter, the executing Court held that the decree-holder was not entitled to anything on account of the personal decree, inasmuch as the judgment-debtors had already paid more than what was due. There was an appeal to the learned. District Judge who reversed the decision of the executing Court. The learned District Judge held that the provisions of Secs.10 and 11, Orissa Money-Lenders Act, did not apply. He further held that, even if Section 11 did apply, the transaction could not be reopened beyond 14 December 1928, the date on which the mortgage bond in suit was executed for Rs. 1920. It has been conceded by the learned advocate appearing for the appellants that the judgment-debtors will get no relief, unless the transaction is re-opened upto 14 April 1909, when the original loan was given. As to the application of Section 10, Orissa Money-Lenders Act, the matter is concluded by a decision of this Court in Basudeb Mahapatra V/s. Surendra Nath Mitra A. I. R. 1942 Pat. 431. It has been held therein that Section 10 of the Act is not applicable to execution proceedings by virtue of the provisions of Section 16, Orissa Money-Lenders Act. That decision has been followed in another unreported case; M.A. No. 10 of 1940. The decision reported in 8 Out. L. T. 49,1 binds us. In view of that decision, the appellants are clearly not entitled to any relief under Section 10, Orissa Money-Lenders Act. The only other point agitated before us is whether the appellants are entitled to relief under Section 11, Orissa Money- Lenders Act. The main difficulty in the way of the appellants is the existence of the decree of 1927. Sub-section (2) of Section 11 of the Act, seeks to give retrospective effect to the foregoing provisions of Sub-section (1) of the section. Sub-section (2) reads: Where a decree passed by a Court on 1 April 1936 or thereafter, on the basis of a loan, remains unsatisfied in whole or in part on the date on which this Act comes into force, the Court which passed the decree, or the Court or other authority to which a decree is sent for execution jaae,j, on the application of the judgment-debtor, exercise all or any of the powers specified in Sub-section (1).

(2.) It has been contended before us that the decree, which is under execution and which remains unsatisfied, is the personal decree passed in May 1936. Inasmuch as this decree was passed after 1 April 1936, the Court can exercise the powers specified in Sub-section (1) of Section 11 of the Act, with regard to the loan on the basis of which the decree was passed. It has been held in several cases that a personal decree passed under Order 34, Rule 6, Civil P. C, is a new decree. Accepting, therefore, the position that the personal decree passed in My 1936, is a new decree, it would appear from the provisions of Sub-section (2) of Section 11, Orissa Money-Lenders Act that the Court may exercise the powers specified in Sub-section (1) of Section 11 as respects the personal decree passed in May 1986. The real trouble, however, begins when we Consider the question as to what transaction can be re-opened in this ease. The loan on the basis of which the personal decree was passed is the loan of 1928 for a sum of Rs. 1920. It is common ground that, by re-opening the transaction from 1928, the appellants can get no relief under the provisions of Sub-section (1) of Section 11 of the Act. As a matter of fact, the Court, which passed the decree on the basis of the loan of 1928, did not allow interest at a higher rate than what was permissible under the provisions of Sub-section (1) of Section 11 of the Act. The learned advocate for the appellants contended, however, that it would be open to the Court to re-open the transaction upto the original loan of 1909. In my opinion, this contention is unsound and cannot be accepted. There was much argument before us about the definition of the expression "loan." The definition clearly shows that the expression includes a transaction on a document in respect of past liability. The loan, on the basis of which the personal decree was passed, was the loan of 1928. The provisions of Section 11, Orissa Money-Lenders Act, do not allow the reopening of a transaction which had merged into a decree long before the relevant date, namely, 1 April 1936. The loan of 1909 had merged in a decree long before 1st April 1936. That decree had as a matter of fact been satisfied. Therefore, to uphold the contention of the appellants raised in this case would be tantamount to re-opening decrees which had been passed long before the relevant date, namely, 1 April 1936.

(3.) The learned advocate for the appellants relied on the case in Bhabani Prasad V/s. Satyen-dranath Mukherjee where the nature of,a preliminary decree and a personal decree has been explained. That case was decided with reference to the relevant provisions of the Bengal Money Lenders Act. It was held therein that, if the personal decree was made after the relevant date (which was 1 January 1939 in the Bengal Act), the preliminary decree could be reopened, but it could not be re-opened in such a way as to affect the final decree for sale already satisfied. The case under our consideration is different from the case which led to the decision referred to above. In the case before us, it is not merely the preliminary decree in the second suit which stands in the way of the appellants. If the preliminary decree in the second suit was the only obstacle in the way of the appellants, then the Calcutta decision referred to above would have been of some assistance to the appellants. The real obstacle in the way of the appellants in this case is the much earlier decree of 1927. As I have already stated, the appellants can get no relief unless they go back to 1909. This they clearly cannot do in view of the existence of the decree of 1927. The words used in Sub-section (2) of Section 11, Orissa Money-Lenders Act, are clear enough. They clearly and unequivocally say that it is only when a decree passed by a Court on 1 April 1936, or thereafter, remains unsatisfied that the loan on the basis of which the decree was passed can be re-opened. In the particular case under our consideration, the appellants not merely seek to re-open the transaction upto 1928, in which year the loan on the basis of which the personal decree was passed was advanced, but they wish to go upto 1909, that is, to a loan which had already merged in a decree in 1927, much earlier than the relevant date mentioned in the provisions of Sub-section (2) of Section 11 of the Act. For the reasons given above, I am of the view that the appeal is without merits. The appeal is, therefore, dismissed with costs. Sinha, J.