MUHAMMAD KAZIM ALI Vs. RAMESH CHANDRA SIL

JUDGEMENT

(1.) The appellants are the plaintiffs, judgment-debtors, and the facts are not disputed. On 12- 4-1930 the plaintiffs executed a mortgage bond for Rs. 600 in favour of the respondent, interest being at 20 per cent, per annum. The mortgagee sued on the bond and obtained a preliminary decree for Rs. 1200 on 17-11-1936. The decree was made final on 21-12-1936. The mortgaged property which comprised the land of seven schedules was put up to sale and purchased by the decree, holder for Rs. 500. The sale was confirmed on 16-9-1937 and delivery of possession was taken through Court on 30-9-1937. The decree-holder did not however succeed in obtaining actual possession and in 1938 he instituted Title suit No. 116A/38 for a declaration of his title and for khas possession. He obtained a decree for the entire property in the trial Court. In appeal, the suit was withdrawn in respect of the property contained in Schedule 4, but the decree of the trial Court was confirmed on 15-9-1939 in respect of the remaining six schedules of property.

(2.) On 9-9-1940, the mortgagors applied under Section 36, Bengal Money-Lenders Act, for reopening of the decree in the mortgage suit. The application was allowed by the trial Court who assessed the dues recoverable under the mortgage at Rs. 1200-15-3. In view, however, of the provisions of proviso (ii) of Section 36(1), Bengal Money-Lenders Act, he held that he could not interfere with the decree which had been passed in Title Suit No. 116A/38, and consequently that he could not make a direction under Sub-section (c) of Section 36(2) of the Act for the restoration to the mortgagors, judgment-debtors, of the entire mortgaged property, but only in respect of Schedule 4 property which was valued at Rs. 200. He, therefore, passed a new decree for the sum of Rs. 600-15-3 (i.e. Rs. 1200-15-3 less Rs. 600 realised by the sale of the remaining six schedules of property) and directed that the judgment-debtors would be allowed to pay this amount by annual instalments of Rs. 50 each.

(3.) The judgment-debtors appealed and there was a cross, objection by the decree-holder respondent. The appeal related to the refusal of the trial Court to order restoration of the entire mortgaged property; the cross-objection mainly to the contention that there was no justification for reopening the decree, but the grounds on which this objection was made were grounds which have not been advanced at the hearing in this Court. The cross-objection was disallowed so far as it related to the contention that the decree could not be reopened, but allowed in respect of the claim that interest should have been allowed from the date of the suit to the date of the new decree, an amount which was found to be Rs. 185-6-6. The appeal was dismissed and the decision of the trial Court upheld in regard to the refusal to order restoration of the land of the six schedules of property of which the decree-holder had obtained a decree for khas possession. The judgment-debtors have now appealed and there is again a cross-objection by the decree-holder. The point urged in the appeal is that the Courts below have erred in not ordering restoration of the entire mortgaged property and the objection of the respondent is that the Courts below were wrong in reopening the decree.