Authored By : Biswas, B.K. Mukherjea

Biswas, J.

1. This rule arises out of an application under Section 36, BengalMoney-lenders Act, which was dismissed by the learned Subordinate Judge ofBurdwan on the ground that the borrowers were not entitled to any relief. Thefacts of the case are briefly as follows : One Satya Charan Mukherjee died,leaving a widow, Tulsi Devi, a son, Kamalesh and three daughters. Kamaleshinherited his fathers properties, but he died intestate and unmarried, leavinghis widowed mother Tulsi Devi as his sole heiress. Tulsi Devi died in Ashar1341 B.S., and upon her death the properties of Kamalesh devolved on thepetitioners as the next reversioners, being the daughters sons of Tulsi Devi.It appears that on 7th July 1920, Tulsi Devi borrowed a sum of Rs. 1500 fromthe opposite party, Azimuddin Mullick on the security of some of her properties.The loan carried interest at the rate of Re. 1/8 per cent, per month. Later on,on various dates in the year 1924, Tulsi Devi borrowed further sums from thesame party and at the same rate of interest aggregating to a total of Rs. 1500.These were unsecured loans on promissory notes. In February 1927, the oppositeparty instituted two suits for recovery of his dues in respect of both themortgage and the promissory notes. The mortgage suit was numbered 20 of 1927and the money suit 21 of 1927. In the money suit a decree was passed on 2lstJune 1927, for a sum of Rs. 2473-13-0 inclusive of costs, with interest on thedecretal amount at the usual rate of 6 per cent per annum. The mortgage suitwas decreed about a month later, namely on 19th July 1927, for a total sum ofRupees 3324.2.6, inclusive of interest pendente lite and costs. Thereafter itis stated the debts under these decrees were adjusted between the parties, andin lieu thereof on 2nd June 1928 Tulsi Devi executed in favour of the oppositeparty, a mortgage bond for a sum of Rs. 6313-5-0, which was made up of theamounts due up to that date on account of the said two decrees. There was noprovision for payment of interest under this mortgage, but possession of themortgaged properties was given to the opposite party in lieu of interest and itis not disputed that the opposite party has since remained in possession of thesame.

2. In 1938, the opposite party instituted a suit to enforcethis last mentioned mortgage, being Mortgage Suit No. 11 of 1938, and the totalclaim was laid at the sum of Rs. 6313.5.0 being the amount of the mortgagedebts stated in the bond. A preliminary decree followed in the usual course on3lst March 1939, for a sum of Rs. 7163.7-0 inclusive of costs, and the decreecarried interest at the rate of 6 per cent per annum. On 5th December of thatyear, the decree was made final, and thereafter on some date in 1940, thedecree-holder put the final decree into execution in Mortgage Execution CaseNo. 60 of 1940. It is in this execution case that the petitioners assuccessors-in-interest of the original borrower filed the present applicationunder Section 36, Bengal Money-lenders Act, whereby they sought to re-open thetransaction. The application purported to be made under Sub-clause (1) ofClause (a) of Sub-section 6. As already stated, the learned Subordinate Judgewho heard the application dismissed it on the ground that the petitioners werenot entitled to any relief under the provisions of the Act. It is against this orderthat this rule has been obtained.

3. The first point that arises is whether the applicationwas competent. Sub-section (6) of Section 36, Bengal Money-lenders Act,requires . that in order that the Court may be invited to exercise the powersconferred by Sub-sections (1) and (2), there must be a decree passed by theCourt in a "suit to which this Act applies which was not fully satisfiedby the 1st day of January 1939." So far as the present decree isconcerned, there can be no doubt that it was passed in a suit which was pendingon the 1st day of January 1939, because the final decree in the suit was notpassed before 5th December of that year. From that point of view, the suitwould easily come within the definition of a "suit to which this Actapplies," as given in Sub-section (22) of Section 2. It is not, however,quite so clear as to whether the decree can be said to fulfil the otherconditions laid down, namely, that it must be a decree "which was notfully satisfied by the 1st day of January 1939." On the face of it, itseems to be difficult to predicate of a decree which ex hypothesi is passedafter 1st January 1939, that it was not fully satisfied by that date. Such adescription would not only not be apposite, but appear to be wholly meaningless.There can evidently be no question of a decree being satisfied, fully orotherwise, prior to the date on which it is passed. There may be room,therefore, for argument that the present application did not comply with allthe requirements of Clause (a) of Sub-section (6), and was not, therefore, acompetent application. As this point however, was not raised before us, and asit is possible to dispose of the rule on other grounds, we must reserve foranother occasion a final decision on this interesting, but intriguing questionas to the correct interpretation of the phraseology employed in el. (a). Weshall assume for our present purposes that the application was maintainable,and on that view proceed to consider whether there was any other bar to the grantingof relief to the borrowers.

4. The learned Judge holds, and that point of view has beenpressed before us on behalf of the opposite party, that the application escapesthe first, but is hit by the second proviso to Sub-section (1) of Section 36.It will be seen that Sub-section (1) provides inter alia that in a suit towhich this Act applies, the Court may exercise all or any of the powers set outtherein for the benefit of the borrower. Sub-section (2) provides that if inexercising such powers the Court re-opens a decree, the Court may, among otherthings, pass a new decree. The powers which are conferred on the Court bySub-section (1) include the re-opening of any transaction and the re-opening ofany accounts already taken between the parties. There is, however, an importantproviso to this sub-section which limits. the exercise of the powers thereunderto a considerable extent. The proviso is in two parts which are embodied inClauses (1) and (2). Clause (1) forbids the Court to reopen adjustments oragreements which were concluded between the parties more than 12 years beforethe date of the suit in which the application for relief is made, and Clause(2) lays down that in re-opening transactions or accounts, the Court is not todo anything which "affects" any decree of a Court. There is, however,an exception within the second proviso, the effect of which is that if a decreecan be brought within the exception, there is nothing to prevent the Courtacting in exercise of its powers in such a way as to affect such a decree. Theexception excludes from the operation of this proviso "a decree in a suitto which this Act applies which was not fully satisfied by the 1st day ofJanuary 1939," as well as an award under the Bengal Agricultural DebtorsAct, with which we are not concerned in this appeal, So far as one can see,therefore, the scheme of the Act as embodied in Sub-section (1) of Section 36seems to be that although the Court is given almost plenary powers to reopenpast transactions and past accounts it is still not permitted to disturbadjustments or agreements made more than twelve years before, or to touchdecrees which may have been passed between the parties and which were notoutstanding or capable of execution on 1st January 1939, this being thematerial date which appears to have been adopted in the Act for this and otherpurposes.

5. On the facts already stated, it will be seen that thereis no attempt here to disturb any adjustment which is more than 12 years old.The adjustment which is sought to be reopened is in fact stated to have beenmade on 2nd June 1928, the date on which the last mortgage was executed, andthis is within 12 years of the date on which the present suit was instituted.The learned Judge is, therefore, quite right in holding that proviso (i) doesnot stand in the way of the petitioners. It seems to us, however, that thepetitioners have no answer in so far as the second proviso is concerned. Mr.Chakravarty tried to avoid the effect of this proviso by a two-fold argument.In the first place, he contended that there was no question here of"affecting" a decree at all, and secondly, he said that even if it besupposed that any decrees would be affected by reason of the exercise of thepowers which were invoked in this case, the decrees came within the exceptionlaid down in the proviso. In our opinion, there is no substance in any of thesecontentions.

6. On the first point, there can be no doubt that if therelief asked for were allowed, it would amount to affecting the two decreeswhich had been passed in the year 1927, namely, the decrees in Mortgage suitno. 20 of 1927 and Money Suit No. 21 of 1927. The consideration for themortgage of 2nd June 1928 was the total of the two sums which were due underthese decrees, and the reopening of the mortgage transaction must necessarily,therefore, involve a re-opening of the two decrees. It is no answer to say thattie decrees had ceased to exist by reason of the execution of the new bond inlieu thereof, and that, therefore, there were no decrees to be affected.Proviso (ii), as we apprehend, does not mean that a decree may not be affectedwithin the meaning thereof, if it is no longer subsisting. On the other hand,it seems to us clearly to contemplate the affecting of decrees which werealready satisfied. Such satisfaction might be the result of payment in Court orout of Court, or on other grounds, as would appear to be the case here.

7. As regards Mr. Chakravartys next attempt to get rid ofthe proviso, all that need be said is that his position in this respect isstill weaker. The two decrees of 1927 cannot obviously be said to be decrees insuits to which the Act applies, which were not satisfied by 1st January 1939.Neither part of this description is in fact applicable. The suits in whichthese decrees were passed could not certainly be described as "suits towhich this Act applies" within the definition clause of the Act, asneither the suits nor any execution proceedings in connexion therewith werepending on 1st January 1939. Nor can it be contended that the decrees weredecrees which were not fully satisfied by that date. On Mr. Chakravartys ownshowing in connexion with the first point, the decrees had ceased to exist onexecution of the mortgage bond in lieu thereof. That would doubtless besatisfaction of the decrees, but even if it be supposed that the execution ofthe fresh bond did not have that effect, it hardly admits of doubt that thedecrees had been satisfied by operation of the law of limitation. It does notappear that any steps were taken within three years of the passing of thesedecrees to enforce the same by way of execution. On that ground alone, it mustbe held that the decrees were no longer in existence and had been satisfied.That being so, we do not think that the exception contained in the secondproviso to Sub-section (1) is of any avail to the petitioners. On these groundswe must hold that the learned Subordinate Judge was right in the view he took,and this rule must accordingly be discharged. We make no order as to costs. Letthe counter-affidavit and the affidavit in reply filed in Court be kept on therecord.

B.K. Mukherjea, J.

8. I agree.

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Tarapada Banerjee and Ors.vs. Ajimaddin Mallik (10.07.1941- CALHC)