BHUPENDRA NATH ROY CHOUDHURY Vs. SUSHIL CHANDRA CHAKRAVARTY

JUDGEMENT

(1.) The question in this appeal, broadly stated, is whether a borrower is entitled to relief under Section 36(1), Bengal Money Lenders Act, 1940, in respect of a loan which was satisfied before the Act came into force. The facts were these. On 16 February 1924, the predecessor-in-interest of the appellant borrowed a sum of Rs. 4200 from the respondent on mortgage of two holdings within the Municipality of Dacca, stipulating to pay interest at the rate of Re. 1-4-0 per cent. per annum. In 1926 the appellant purchased the properties from the mortgagor subject to the mortgage, and thereafter wanted to redeem the same. The mortgagee, however, would not accept payment amicably, and this led the appellant to have recourse to the provisions of Section 83, T. P. Act. This section provides that at any time after the principal money payable in respect of a mortgage has become due and before a suit for redemption is barred, the mortgagor or any other person entitled to institute such suit may deposit, in any Court in which he might have instituted such suit, to the account of the mortgagee, the sum remaining due on the mortgage. On 27 February 1929, the appellant accordingly applied for permission to deposit a sum of Rs. 8720 in the First Court of the Subordinate Judge of Dacca to the credit of the mortgagee, stating that to be the sum still out-standing on the mortgage, including interest computed at the bond rate. Notice of the deposit was duly served on the mortgagee as required under para. 2 of Section 83. Notice was also given to the original mortgagor. Pursuant to the notice, the mortgagee applied for withdrawal of the amount deposited, and at the same time produced the mortgage deed in Court for return to the mortgagor. On 20 April 1929, the Court made an order on this application permitting the withdrawal, and also directing delivery of the bond to the appellant. The original mortgagor not objecting to the order, the money was in due course withdrawn by the mortgagee on 23 April, 1929. The mortgage deed also appears to have been taken back by the appellant. The transaction, in these circumstances, was in fact finally closed between the parties, and also regarded by them as such. On 1 September 1940, however, there came the Bengal Money Lenders Act for the relief of borrowers, and as this enactment prima facie appeared to permit the re-opening of past transactions, the appellant apparently thought that he could obtain relief thereunder in respect of the mortgage, notwithstanding the aforesaid proceeding under Section 83, T. P. Act. To that end, as the first step, what the appellant did was to file an application on 6 February 1941, in the first Court of the Subordinate Judge of Dacca, praying for review of the order which the Court had made in that proceeding on 20 April 1929. It was alleged that an insufficient deposit had been made, and the proceeding was accordingly sought to be set aside as invalid in law, so as to revive the appellant's liability under the mortgage. This was an unusual application for a mortgagor to have made, but the object evidently was to lay the foundation for a claim to relief under the provisions of the Bengal Money Lenders Act.

(2.) That claim followed on the next day, 7 February 1941, and it was in the form of an application for relief under Section 36(1) of the Act filed before the Third Subordinate Judge of Dacca. The relief asked for was in terms of Clause (a) of Sec. 36(1), namely, that the mortgage transaction be re-opened and an account be taken between the parties. A further prayer was added asking for a declaration that a sum of RS. 2829-10-8 had been realised by the mortgagee in excess of the limits imposed by Clauses (1) and (2) of Section 30. There was also in effect a prayer for refund of this amount. The application was expressly based on the allegation that the mortgage debt was still outstanding; and reference was made in this connexion to the review petition whereby the appellant had in fact sought to establish this position. The review petition, it appears, had been summarily dismissed, but apart from that the Court found little difficulty in rejecting the appellant's contention. The order-sheet in the ease under Section 83, T. P. Act, was sufficient to show that the deposit made by the appellant had fully wiped out the liability under the mortgage. It could not be said, therefore, that the relationship of borrower and lender still subsisted between the parties, and the learned Judge accordingly held that the provisions of the Bengal Money Lenders Act were not attracted. In any view, it was added, there could be no question of any refund, as a refund could be allowed only under Clause (d) of Section 36(1), that is to say, if anything had been paid or allowed in account on or after 1 January 1939, which admittedly was not the case here. In the result, by his order dated 10 December 1941, the learned Subordinate Judge rejected the application. The appellant took an appeal to the District Judge, but this was summarily dismissed on 17 January 1942, on the short ground that no appeal lay against an order rejecting an application under Section 36(1), Bengal Money Lenders Act. It is against this decision that the present appeal has been preferred. The first question which arises is as to the competency of the appeal. We think the learned District Judge was right in holding that no appeal lay to him, and on the same ground a second appeal to this Court would be equally barred.

(3.) Section 36(1), Bengal Money Lenders Act, does not in terms speak of an application to be made by a borrower: all that it says is that relief may be given either in a "suit to which this Act applies," or in a suit which may be brought by a borrower for relief under the section. It is obvious, however, that in the former case the Court must be moved by way of an application. Where in a "suit to which this Act applies" a decree has been already passed, Section 36(6) clearly indicates an application as the appropriate procedure: Clause (a) shows that such application may be made either in an execution proceeding under Sub-clause (i), or by way of review within one year from the date of commencement of the Act, under Sub-clause (ii): while Clause (b) contemplates an application in a pending appeal against the decree. Where a borrower brings an independent suit for relief under Section 36(1), the question of a right of appeal presents no difficulty. The suit must terminate in a decree, and such decree will be appealable under the provisions of the Civil P. C., if not under the Bengal Money Lenders Act, which in fact makes no provision for appeal. A first appeal will lie under Section 96 of the Code, with a further right of second appeal in some cases under Section 100. Where, on the other hand, relief is sought by way of an application, the question of an appeal will not admit of the same answer in all cases. Where, in consequence of the application, a decree is re-opened and a new decree made, an appeal will undoubtedly lie against the new decree, and where, again, the application is made in a pending appeal, an appeal will equally lie against the decree of the appellate Court.