Authored By : Sen, B.K. Mukherjea

Sen, J.

1. This is an appeal from an order dismissing an applicationunder Section 35, Bengal Money-Lenders Act, for default. The application wasmade by the judgment-debtor. On 19th April 1941, the parties were ready. Onthat date, however, there seems to have been some sort of understanding betweenthe parties and the judgment-debtor undertook to pay Rs. 2000 within week. Uponthis undertaking being given, the matter was adjourned to 26th April 1941 forfurther orders, and the case was directed to be taken off from the peremptorylist. On 26th April 1941 the judgment-debtor filed a petition stating that hewas unable to deposit the sum owing to the fact that a boat containingmerchandise belonging to him had sunk. He prayed for further time to depositthis amount. The learned Subordinate Judge rejected the prayer Of the judgment,debtor and by the same order dismissed his petition under Section 35, BengalMoney-Lenders Act, for default.

2. It was argued on behalf of the appellant that this orderof dismissal is bad, inasmuch as 26th April 1941 was not a date fixed for thehearing of the petition. We are of the opinion that this contention is sound.The learned Subordinate Judge should have fixed another date for hearing thepetition. We would have been inclined to send the matter back for re-hearingbut for the fact that we are of the opinion that the petition under Section 35,Bengal Money-Lenders Act, cannot succeed. The decree in this case was passed on6th September 1937. The judgment-debtor took all possible steps for delayingthe realisation of the decree. 18th August 1938 was fixed, by the Court forfixing the valuation of the property to be sold. On that day thejudgment-debtor put in no objection and the property was valued, we understand,at Rs. 19,000, and the sale proclamation was issued upon this valuation.Thereafter, the judgment-debtor obtained a stay order from the Debt SettlementBoard and when the stay order exhausted itself he made an application underSection 86(b), Bengal Money-Lenders Act. That application having failed, thepresent application under Section 35, Bengal Money-Lenders Act, was made.Section 35, Bengal Money-Lenders Act, runs thus:

Notwithstanding anything contained in any other law for thetime being in force, a proclamation of the intended sale of property inexecution of a decree passed in respect of a loan shall specify only so much ofthe property of the judgment-debtor as the Court considers to be saleable at aprice sufficient to satisfy the decree, and the property so specified shall notbe sold at a price which is less than the price specified in such proclamation.

3. Then, there is a proviso with which we are not concerned.The contention oh behalf of the appellant is that the sale proclamation shouldnow be amended; the property should be re-valued and only so much of theproperty of the judgment-debtor should be sold as would be sufficient tosatisfy the decree. On behalf of the decree-holder, it was contended thatSection 35, Bengal Money-Lenders Act, had no application to a case where theloan was taken before the Act, or, at any rate, to a case where the decree was passedbefore the Act. We are not impressed by this argument. There is nothing inSection 35, Bengal Money-Lenders Act, which would justify us in holding that itis restricted to cases of loans taken after the Act or to decrees passed afterthe Act. The section states that when property is sought to be sold inexecution of a decree passed in respect of a loan, the proclamation shall bedrawn up in a certain way and the property specified therein shall not be soldbelow a certain price. There is nothing in the section which says or impliesthat the decree must be one which was passed after the Act or that the loanmust be one advanced after the Act. The section deals with all decrees passedin respect of loans when a sale is intended in execution of the decree. Thereare many sections in the Act which affect decrees passed before the Act andloans taken before the Act. There is no room for suggesting that the scope ofthe Act is limited to post Act decrees and post Act loans. In my opinion, therewould have been no difficulty in the way of the judgment-debtor getting theproclamation framed and the sale held in accordance with the provisions ofSection 35 were it not for the fact that there has already been a proclamationissued. The section must be construed strictly. It lays down what should bedone at the time of drawing up the sale proclamation and at a sale heldpursuant to such proclamation. When the present sale proclamation was drawn upthe Bengal Money-Lenders Act was not in force and Section 35 could nottherefore affect such a proclamation.

4. The section nowhere says that a sale proclamation validlyissued before the Act would cease to have effect after the Act nor does it saythat such sale proclamation should be amended in accordance with its provisions.It merely directs what should be done when a sale proclamation is about to bedrawn up and at a sale held pursuant to such proclamation. Mr. Mookerjee forthe appellant contends that there is a prohibition in the section againstselling property at a price lower than the decretal amount and he argues thatthis provision should apply to the present sale. If the section be readcarefully it will be found that it contains no such general prohibition. Therelevant portion of the section says--"and the property so specified shallnot be sold at a price which is less than the price specified in the saleproclamation." The prohibition is restricted to the sale of "propertyso specified," i.e., to the sale of property specified in a sale proclamationframed in accordance with Part 1 of Section 35. It has no application to a saleof property included in a sale proclamation drawn up before the Act came intooperation. In my opinion, the section does not require the Court to set asideor amend a sale proclamation validly and duly drawn up. Section 35 has noapplication to this case. For these reasons the application of thejudgment-debtor must fail. The appeal is dismissed. There will be no order forcosts. No further order is necessary on the Rule.

B.K. Mukherjea, J.

5. I agree.

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Girish Chandra Das vs. Siba Prasad Jana and Ors. (09.12.1941- CALHC)