SAIBALINI GUPTA Vs. UMA SUNDARI

JUDGEMENT

(1.) This appeal is by the decree-holder and arises out of an application made by her under Section 86(2)(e), Bengal Money-Lenders Act, and the objection raised thereto by the judgment debtor under Section 47. Civil P.C. Both the Courts below have dismissed the appellant's application on the same ground.

(2.) The material facts are the following. It appears that the appellant obtained against the respondent a decree for Rs. 55-7-6 in Small cause Court Suit No. 288 of 1988 of the Court of the Sixth Munsif of Dacca. She put the decree into execution and brought certain properties of the judgment-debtor to sale at which she purchased the properties herself. Possession was delivered to her on 2-12-1941. Thereafter, on the Bengal Money-Lenders Act having come into force, the respondent commenced a suit under Section 86 of that Act which was other class Suit No. 155 of 1943. In that suit, the old decree was re-opened and a new decree passed for Rs. 85 on 511-1943. The amount of the new decree was made payable in annual instalments of Rs. 8 payable in Falgun of each year commencing from the Bengali year 1350 up to the year 1358 and the last instalment of Rs. 13 was made payable in Falgun of 1359. An appeal by the decree-holder was dismissed on 12-4-1944, and by the appellate decree an amount of Rs. 9 was awarded against, the decree-holder as costs.

(3.) It is necessary at this stage to set out certain provisions contained in the new decree passed by the trial Court which was simply affirmed by the Court of appeal below. The provisions are as follows: The payment of the instalment shall be subject to Section 34 (2), Bengal Money- Lenders Act The possession of the suit land be restored to the plaintiff. In default of payment of any of the instalments, the defendant (decree-holder) shall be again put into possession of the suit land in terms of Section 36(2)(e), Bengal Money- Lenders Act.