Authored By : B.K. Mukherjea, Earnest Charles Ormond

B.K. Mukherjea, J.

1. This appeal is on behalf of the judgment-debtor, and isdirected against an order of Mr. A.G. Chatterjee, Subordinate Judge SecondCourt Howrah, dated 28th September 1943, made on an application presented bythe appellant under Ss. 47 and 151, Civil P.C.

2. To appreciate the points in controversy between theparties, it would be necessary to state certain earlier facts: On 15th April1943, (sic) the appellant Debabrata Mukherjee took an advance of Rs. 3000 fromtwo persons, viz., Bhulidhone Mukherji and Bejoy Gopal Mukherjee, on a mortgageof his one-sixth share in the joint family property. The mortgage was in theform of a conditional sale carrying interest at the rate of 12 per cent perannum. Some time afterwards, Debabrata created a second mortgage in respect ofthe same property in favour of one Susil Kumar Mukherjee. On 11th December1910, Bhulidhone and Bejoy Gopal instituted a suit against Debabrata in theCourt of the second Subordinate Judge, Howrah, to enforce their mortgage bond,and the second mortgagee was made a party defendant in the suit. On 25th June1941, a preliminary decree was passed under O. 34, R. 2, Civil P.C., read withS. 34(1)(a)(i) & (ii), Bengal Money-lenders Act, and the principal moneytogether with interest and cost aggregating to Rs. 5440 was directed to be paidin sis annual instalments. The first instalment was for Rs. 500 only and was tobe paid within November 1941, while the other five instalments were for Rs. 988each and were payable within November every year for five successive years. On29th November 1941, the judgment-debtor paid Rs. 250 out of the first instalment,and made an application for extension of time to pay the balance. Thisapplication was registered as Miscellaneous case No. 94 of 1941. On 31stJanuary 1942, the Court made an order granting extension of time till 30th June1942. Further extension of time was granted by subsequent orders of the Court,and eventually, the balance of the first instalment was paid on 29th July 1942.On 28th November 1942, when the time for paying the second instalment washeating its end, the judgment-debtor applied for extension of time to pay thesecond instalment. It was stated in the application that he had entered into acontract with one Abani Mukherjee for sale of the mortgaged property with theexception of the bastu portion, for a consideration of Rs. 8000 and that theconveyance was to be executed on or before 30th January 1943. This, it wassaid, would enable the judgment-debtor to pay the entire mortgage money all atonce without the necessity of paying it in instalments. Upon this the Courtmade the following order on 30th November 1942:

Judgment-debtor wants to pay entire amount. I am prepared toextend time up to 1st February 1943, for payment of the whole amount. If entireamount be not paid, the second instalment shall be held to be in default andjudgment-debtor shall not be entitled to save one kist only by payment of thekist.

3. It may be stated here that neither the parties nor theCourt appreciated correctly the provision of law as laid down in the provisosto S. 34(1)(a)(ii), Bengal Money-lenders Act. As has been held by a DivisionBench of this Court in the case of Promotha Nath Sanyal v. Sailesh ChandraChoudhury, : 47 C.W.N. 306 : (A.I.R. 1943 Cal. 214) [LQ/CalHC/1942/116] , when adefault has occurred in the payment of one instalment payable under a mortgagedecree passed under S. 34 (1)(a)(i) , Bengal Money-lenders Act, the Court hasno power under the first proviso to S. 34(1)(a)(ii) to grant an extension oftime in respect of the particular instalment in default. The first proviso onlyempowers the Court to allow extension of time for payment of the whole amountwhich on such default becomes payable by the operation of S. 34(1)(a)(ii) ofthe Act. On such default occurring, the decree-holder becomes immediatelyentitled to apply for a final, decree, but proviso 2 allows the judgment-debtorto prevent the passing of such decree by paying into Court only the instalmentin default. The position, therefore, is that the first part of the orderrecorded by the Court on 30th November 1942, by which extension of time wasallowed for payment of the whole money up till 1st February 1943, was perfectlyright, but the last portion which purported to take away from thejudgment-debtor the right given to him by proviso 2 mentioned above waserroneous.

4. It appears that the judgment-debtor made bona fideefforts to pay the entire amount due under the mortgage decree. On 1st February1943, he paid Rs. 1000 and another sum of Rs. 1000 was paid only seven dayslater on 8th February 1943. On 16th February 1943, a further sum of Rs. 500 waspaid, and on that day a petition was put in on behalf of the judgment-debtorand the decree-holders jointly wherein it was stated that the balance of thedecretal dues would be paid within one week from the date by the judgment-debtor,failing which the final decree might be passed; and the judgment-debtor furtheragreed to waive any notice that might be necessary under the BengalMoneylenders Act prior to the making of the decree final. Upon this the Courtmade the following order:

Defendant files a petition praying for further extension ofone weeks time to pay the balance due. The plaintiff has no objection to thedefendants prayer. Time is extended to 24th February 1943, for makingpayments.

On 23rd February 1943, the original decree-holders assignedtheir decree to the present respondent, Satish Chandra Banerjee, and Satish wassubstituted in the place of his assignors on that very day. Unfortunately, thejudgment-debtor could not pay the balance of the decretal dues within thespecified time, and on 26th March 1943, the final decree was passed. On 27thApril 1943, the assignee decree-holder put the decree for foreclosure intoexecution. Objections were raised by the judgment-debtor to delivery ofpossession of the property, but this petition, it seems, was rejected on theground that symbolical possession was already taken. Eventually, thejudgment-debtor put in an application before the executing Court under Ss. 47and 151, Civil P.C. out of which the present appeal has arisen.

5. The application, if we may say so, was the last anddesperate attempt on the part of the judgment-debtor to stop the execution ofthe final decree for foreclosure. It seems, however, that the judgment-debtorwas not properly advised in the matter. The application is long and verbose,and contains many allegations which are either irrelevant or of such acharacter as could not be entertained by an executing Court. The applicant wasalso not sure of the relief which he wanted. At one place, it was alleged thatno final decree ought to have been drawn up; in another place, it was statedthat the decree was pro tanto discharged; and in any event, the judgment-debtorwas entitled to a refund of the amounts paid. In the prayer clause, however,the only prayer made was that the application for delivery of possession of theproperty might be dismissed. We have no hesitation in saying that thejudgment-debtor, or rather his legal adviser, thoroughly misconceived theremedy, and the executing Court was powerless to give any of the reliefsclaimed. An executing Court can certainly refuse to execute the decree when onthe face of it, the decree was passed by a Court which had no jurisdictioneither pecuniary, territorial or personal, but there was not the slightest allegationof any such ground in the petition which was presented by the judgment-debtor.

6. The only substantial point in favour of thejudgment-debtor is that on 26th March 1943 when the final decree was drawn up,the instalments already due under the decree had been long paid off by him. Nofinal decree, therefore, could be passed in view of the provision of proviso 2to S. 31(1)(a)(ii). The Court indeed could not grant extension of time for thepurpose of paying any particular instalment, but, as pointed out above, it wasopen to the judgment-debtor to prevent the passing of the final decree bypaying the defaulted instalment only before the final decree was actuallypassed. This fact was stated only incidentally in para. 8 of the petition, andcuriously enough, it was not put forward as a legal objection to the validityof the decree. As we have said already, the judgment-debtor misconceived hisremedy and erred altogether in approaching the executing Court which waspowerless to give him any relief. He could have filed an appeal against thefinal decree, or if there was an apparent error on the part of the Court inoverlooking proviso 2 to S. 34(1)(a)(ii) , Bengal Money-lenders Act when thefinal decree was passed, this could have been brought to the notice of theCourt which made the decree by an application for review, or even by an applicationunder S. 151, Civil P.C.

7. In the present case, we are informed that the executingCourt is the very Court which passed the decree, and the application purportsto be one under S. 151, Civil P.C. and contains the allegation appropriate tothe purpose mentioned above. We think that in the interests of justice, anopportunity should be given to the appellant to have the matter considered bythe Subordinate Judge not as an executing Court, but as the Court which passedthe decree. We hold, therefore, that the order of dismissal made by theSubordinate Judge under S. 47, Civil P.C., should stand, but it would stand onthe ground that it was beyond the competency of the executing Court to enquireinto these matters. We direct the Subordinate Judge to entertain the petitionas the Court passing the decree, and consider only one point, viz., whether indrawing up the final decree in the mortgage suit, the Court overlooked proviso2 to S. 34(1)(a)(ii), Bengal Money-lenders Act. If the Court decides in favourof the petitioner, it will set aside the final decree, and the furtherproceedings will be regulated by the provisions of the Bengal Money-lendersAct. If the Court finds against the petitioner, the order of dismissal willstand.

8. The result, therefore is that this appeal is dismissedbut the application filed by the appellant is sent back to be heard andconsidered by the Subordinate Judge as the Court passing the decree inaccordance with the directions given above. We make no order as to costs in thisCourt.

Earnest Charles Ormond, J.

9. I agree.

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Debabrata Mukherjeevs. Satish Chandra Banerjee(28.05.1947 - CALHC)