Find a Lawyer

Civil Reference No. 1 of 1945, decided on 23rd April 1951.

Art. 13, Pare. 3 Civil Revision referred by Division Bench to Full Bench of Calcutta High Court‑Case transferred to Dacca High Court on Partition‑Case cannot be treated as one referred to High Court as a Court of Reference, as Hs character is not altered ‑Full Bench of Dacca High Court can hear and decide case.

This case was sent to' this Court after Partition, as in view of the Bengal High Courts Order, 1947, it has to be disposed of by this Court. The Court of origin is in this Province and this case was being pending on the date of the Partition. Under Article 13, paragraph 3. of the High Courts (Bengal) Order, 1947, all proceedings pending on the appellate side of the High Court in Calcutta, immediately before the appointed day, shall, ‑here the Court of origin is, as from that day, situated in the Province 'of East Bengal, stand transferred by virtue of the Older to the High Court of East Bengal. Mr. Nagendra Nath Chowdhury, appearing on behalf of the opposite parties, has raised a preliminary objection to this case being heard by a Full Bench of this Court. His contention is this : The above‑mentioned provision in Article 13 (3) begins with the words " Subject to the preceding provisions of this Article ", and in Article 13 (2) (a) " any proceedings which, immediately before the appointed day, are pending in the High Court in Calcutta on its original side, including any proceedings, then, pending in the said High Court as a Court of reference, shall be heard and determined by that Court ". ‑ This, being a reference to a Full Bench by a Division Bench of the Calcutta High ' Court, should, as a Full Bench reference be regarded as coming under Article 13 (2) (a). The revision case itself has, no doubt, to be heard by this Court under Article 13 (3), but that should be by a Division Bench. The composition of the present Bench will merely result in its decision having the force of a decision of a Special Bench and not of a Full Bench.

This preliminary objection, must fail. Assuming that the words " any proceedings then pending in the said High Court as a Court of reference in Article 13 (2) (a) of the Bengal High Courts Order, 1947, refer to all references pending in the Calcutta High Court, this case cannot be considered to be a case pending before that High Court as a Court of reference. The case is a Civil Revision case which was before that High Court on its appellate side and the mere fact that the Division Bench, before which it came for hearing, directed its being placed before a Full Bench, does not alter its character and turn it into a case of reference to the High Court. It still retains the character of a Civil Revision case, particularly when the entire case is placed‑ before the Full Bench. It is rightly conceded that the Revision case has, in view of Article 13 (3) of the said Order, to be dealt with by this Court and that was the reason why the Calcutta High ,Court sent the case down along with other cases. This has to be heard by a Full Bench.

46 C. W. N. 906, 48 C. W. N. 504, 49 C. W. N. 216 and 46 C. W. N. 457 ref. to.

S. 36 (1) Suit under S. 36 (1) not filed by borrower‑" Date of suit " in proviso 1 is date of suit by lender' and not date of application for execution of decree.

In section 2, clause (22) of the Bengal Money Lenders Act, while the word "means" is used in respect of a suit or a pro ceeding instituted or filed on or after the first day of January, 1939, with regard to the proceedings in execution, the word used is " includes ". This distinction is significant and, it indicates that a suit pending on or filed after 1939, and a proceeding other than an execution proceeding similarly pending or instituted can be regarded as suits to which the Act applies, but, in the case of an execution proceeding, the suit to which the Act applies is not the execution proceeding itself, but the suit to which it relates. If the intention of the Legislature were that the execution proceeding itself should be regarded as a suit to which the Act applies, then the word proceeding" would have sufficed and a mention of "proceeding in execution" would have been unnecessary, and in any case the word "means" would have governed execution proceedings also. This becomes evident when the Language of the second proviso to section 35 (1) is taken into consideration. That proviso is to the effect that the Court shall not do anything which affects any decree of a Court other than a decree in a suit to which this Act applies and which was not satisfied by the' first day of January, 1939. Here the expression "suit to which this Act applies" must necessarily be taken to mean the, suit in which the, decree was passed. Then again in subsection 6 (a) (1) of section 36, under which the present petition was filed, it is stated that:

The Court which, in a suit to which this Act applies, passed a decree which was not fully satisfied by the first day of January, 1939, may exercise the powers conferred by sub sections (1) and (2)in any proceedings in execution of such decree.

Here it is clear that the suit to which this Act applies, is not the execution proceeding itself, but the suit in which the decree sought to be executed on or after the 1st January, 1939, was passed. It, therefore, appears to me that the expression "suit to which this Act applies" refers to suits pending on or filed after the first of January, 1939, and to suits disposed of therefore that date in respect of which execution proceedings were pending on or filed after that date. In this view, the date of the suit mentioned in the first proviso, so far as the present case is concerned, is the date of the suit in which the bond of 1924 was enforced, i e., the date of the suit filed in 1931.

48 C. W. N. 361, 46 C. W. N. 906, 48 C. W. N. 36 F. R, 50 C. W. N. 720 and Supreme Court Report (1950) C. W. N. Supplement pp. 74‑79 ref. to.

Nagendra Nath Talukdar, for Petitioner.

Nagendra Chandra Chowdhury with Jnanabrata Roy, for Opposite Parties:

.‑This Civil Revision case, which was referred to a Full Bench by a Division Bench of the Calcutta High Court on the 13th February, 1945, was pending on the date of the Partition ; and, therefore, under High Courts (Bengal) Order, 1947, it was sent to this Court by the Calcutta High Court for disposal. The revision petition was filed against the order of the Subordinate Judge of Rajshahi on an, application under sections 30 and 36 of the Bengal Money Lenders Act for re‑opening tile decree in Money Suit No. 59/31 of that Court and for passing a new decree directing payments by 20 annual instalments after taking accounts between the parties.

The case of the petitioner was as follows :‑---

On diverse dates in 1918 the petitioner's father borrowed Rs. 2,700 from some of the opposite parties and the predecessors of others agreeing to pay interest at 12 per cent. per annum ; he paid Rs. 4,478‑2‑3 towards interest between 1919 and 1923 and executed a registered bond for Rs. 3,300 on the 17th February, 1924. This sum, which was stated in the bonds as the principal, was made up of the principal and arrears of interest on the loans of 1918 and a further sum of Rs. 85 advanced on the date of the bond. On the 12th February, 1931, the creditors instituted a money suit and obtained a decree on the 20th March, 1937, for Rs. 5,570 (consisting of Rs. 2,785 as principal and a similar amount for interest) plus costs. The appeal filed by the debtors against this decree ended in a compromise decree on the 1st March, 1938, for Rs. 4,800. A sum of Rs. 1, 400 was paid towards this amount and execution proceedings were started by the decree‑holders for the balance on the 18th August, 1943. The debtors then made an application under section 36, subsection 6, clause (a) (i), of the Bengal Money Lenders Act for re‑opening the transaction represented by the registered bond of February, 1924. They also prayed that such amount as might be found due on the re‑opening of the said transaction might be ordered to be paid in instalments.

Under section 36 of the Bengal Money Lenders Act, a transaction can be re‑opened in certain circumstances subject, however, to the two provisos. The first of the provisos which applies to this case is this:

"The Court shall not re‑open any adjustment or agreement purporting to close previous dealings and to create new obliga tions which has been entered into at a date more than 12 years prior to the data of the suit by the parties or any person through whom they claim.

The Subordinate judge held, relying on Jagabandhu De v. Akhoy Kumar Sil 46 C. W. N. 906, that the date of the suit men tioned in this proviso must, as far as the present case is concerned, be taken as the date of the application for execution, i.e. the 20th September, 1943, and not the date of the suit filed for the enforcement of the bond, i. e., the 12th February, 1931. He, therefore, declined to re‑open the bond of 1924, but permitted the petitioner to pay the amount due in 12 equal annual instalments.

There was conflict of opinion in the decisions of the Division Benches of the Calcutta High Court with regard to the interpreta tion of the expression " date of the slit " occurring in proviso (i) to section 36 (1) of the Act. The view taken in Jagabandhu De v. Akhoy Kumar Sil, (supra) relied on by the Subordinate judge, was followed in a later decision in Baroda Prosad Sukul v. Durga Prosad Re 49. C. W. N. 216. On the other hand, in Naresh Chandra Gupta v. Lal Mamud Bhuiya 46 C. W. N. 457, and in Baidyanath Dutta v. Mrityuujoy Mukherjee 48 C. W. N. 504 ; it was held that the relevant date, as far as this proviso was concerned, was the date of the suit in which execution was applied for and 12 years were to be calculated from that date. The decision in Jagabandhu De.v. Akhoy Kuumar Sil (supra) was, however, not referred to in the decision in Baidyanath Dufta v. Mrityunjoy Mukherjee (supra). The Division Bench of the Calcutta High Court, before which the present revision petition came for hearing, agreed with the view expressed in Baidyanath Dutta v. Mrityuu joy Mukherjee (supra), but, as the conflict was between the decisions of Division Benches, the following questions were refer red to a Full Bench :‑---

(1) Where no suit for relief by the borrower has been instituted under section 36 of the Bengal Money Lenders Act, 1940, but the lender has obtained a decree in a suit to which the Bengal Money Lenders Act, 1940, applies, whether the phrase "date of the suit" mentioned in proviso (1) to section 36 (1) of that Act is to be taken to be the date of the suit instituted by the lender or the date of the application for execution of the decree passed in that suit in which the debtor applies for relief under section 36, subsection 6, clause (a) (i).

(2) Have the cases of Jagabandhu De v. Akhoy Kumar Sil (Supra) and Baroda Prosad Sukul v. Durga Prosad Roy (Supra) been correctly decided.

This being a revision case, the whole case was ordered to be placed before a Full Bench.

As stated already, this case was sent to this Court after Partition, as in view of the Bengal High Courts Order, 1947, it has to be disposed of by this Court. The Court of origin is in this Province and this case was being pending on the date of the Partition. Under Article 13; paragraph 3, of the High Courts (Bengal) Order, 1947, all proceedings pending on the appellate side of the High Court in Calcutta, immediately before the appointed day, shall, where the Court of origin is, as from that day, situated in the Province of East Bengal, stand transferred by virtue of the Order to the High Court of East Bengal. Mr. Nagendra Nath Chowdhury, appearing on behalf of the opposite parties, has raised a preliminary objection to this case being heard by a Full Bench of this Court. His contention is this: The above 'mentioned provision in Article 13 (3) begins with the word "subject to the preceding provisions of this Article", and in Article 13 (2) (a) "any proceedings which, immediately before the appointed day, are pending in the High Court it Calcutta on it original side, including any proceedings then pending in the said High Court as a Court of reference, shall be heard and determined by that Court". This being a reference to a Full Bench by Division Bench of the Calcutta High Court, should, as a Full Bench reference be regarded as coming under Article 13 (2) (a), The revision case itself has, no doubt, to be heard by this Court under Article 13 (3), but that should be by a Division Beach. The composition of the present Bench will merely result in it's decision having the force of a decision of a Special Bench and not of a Full Bench.

This preliminary objection, in my opinion, must fail. Assuming that the words "any proceedings then pending in the said High Court as a Court of reference " in Article 13 (2) (a) of the Bengal High Courts Order, 1947, refer to all references pending in the Calcutta High Court, this case cannot be considered to be a case pending before that High Court as a Court of reference. The ease it a Civil Revision case which was before that High Court on its appellate side and the mere fact that the Division Bench, before which it carne for hearing, directed its being place before a Full Bench, does not alter its character and turn it into a case of reference to the High Court. It still retains the' character of a Civil Revision case, particularly when the entire placed before the Full Bench. It is rightly conceded that case has, in view of Article 13 (3) of the said Order this Court and that was the reason why the, Court sent the case down along with other cases. In my opinion, this has to be heard by a Full Bench:

As regards the expression "date of the suit" in proviso (1) to section 36 (1) of the Bengal Money Lenders Act, the contention of the learned Advocate for the petitioner is that it refers either to the date on which the suit is filed by a borrower under section 36 (1) or to the date of a "suit to which this Act applies'". As regards the latter expression, it is contended that the fact that its definition includes an execution proceeding does not mean that an execution proceeding itself is a suit to which the Act applies. It is argued that, if an execution proceeding is started alter the crucial date, the suit in which the decree sought to be executed, was passed, becomes a suit to which the Act applies, and that, therefore, in this case the bond of 1924 should have been re‑opened as it was within 12 years of the date on which the suit to enforce it was filed. According to the learned Advocate, therefore, the decisions in Jagabandhu De v. Akhoy Kumar Sil (supra) 'and in Baroda Prosad Sukul v. Durga Prosad Roy (supra) are not correct.

In my opinion, these contentions must prevail. In section 2, clause (22) of the Bengal Money Lenders Act, while the word "means" is used in respect of a suit or a proceeding instituted or filed on or after the first day of January. 1939, with regard to the proceed ings in execution, the word used is "includes". This distinction is significant and, in my opinion, it indicates that a suit pending on or filed after 1939, and a proceeding other than an execution proceeding similarly pending or instituted can be regarded as suits to which the Act applies, but, in the case of an execution pro 4eding, the suit to 'which the Act applies is not the execution proceeding itself but the suit to which it relates. If the intention of the Legislature were that the execution proceeding itself should be regarded as a suit to which the Act applies, then the wore "proceeding" would have sufficed and a mention of is proceeding in execution" would have been unnecessary, and in any case the word "means" would have governed execution proceedings also. This becomes evident when the language of the second proviso to section 36 (1) is taken into consideration. That proviso is to the effect that the Court shall not do anything which affects any decree of a court other than a decree in a start to which this Act applies and which was not satisfied by the first day of January, 1939. Here the expression "suit to which this Act applies" must necessarily be taken to mean the suit in which the decree was passed'. Then again in subsection 6 (a) (i) of section 36, under which the present petition was filed, it is stated that:

"the Court which, in a suit to which this Act applies, passed a decree which eras not fully satisfied by the first day of Jan uary, 1939, may exercise the powers conferred by subsections (1) and. (2) in any proceedings in Execution of such decree."

Here it is clear that the suit; to which this Act applies, is not the execution proceeding itself, but the suit in which the decree sought to be executed on or after the 1st January 1939, was passed.' It, therefore, appears to roe that the expression "suit to which this Act applies" refers' to suits pending on or filed after the first of January, 1939, and, to suits disposed of before that date in respect of which execution proceedings were pending, on or filed after that date. In this view, the date of the suit mentioned in the first proviso, so far as the present case is con corned, is the date of the suit in which the bond of 1924 was enforced i.e., the date of the suit filed in 1931.

As for the decision in Jagabandhu De v. Akhoy Kumqr Sil, (supra) relied on by the Subordinate Judge, I consider that the view taken in it is not correct. There it was held that "the suit to which this' Act applies" is identical with the application in execution, but the significance of the words " means " and includes In the definition considered with the second proviso and section 36 (5) (a) adverted to above does not appear to have been kept in view. That this aspect of the matter was not placed before the learned Judges is clear from the following observation in the Judgment:

" The above seems to be the natural interpretation of the provisions of subsection (1) of section 36, read with, the proviso, and no valid reason for any other view was put forward on behalf of the respondent beyond stressing the phrase suit by the parties and urging that this would only refer to the original suit--------------------But the real answer to this contention is that the phrase by the parties in the proviso under consideration clearly attaches to the words adjustment or agreement which has been entered into'."

On the other hand, in Baidyanath Dutta v. Mrityunjoy Mukherjee, (supra) one of the decisions relied on by the learned referring judges, it is pointed out that:

" If a proceeding in execution of a decree is pending on or after the first day of January, 1939, the suit in which the decree was passed would be a suit to which the Act applies in accordance with section 2, clause (22) of the Act, but the execution proceed ing itself could not be regarded as a suit, for, in that case, the Court would have to re‑open a decree that is made in such execution proceeding which is absurd."

In that case a mortgage bond of 1925 was sought to be re‑opened in execution proceedings started in 1939. As pointed out in the order of reference, 5th December, 1938, in the report of Baidyanath Dutta v. Mrilyunjoy Mukherjee (sufira.) is obviously a misprint for the 5th December, 1939. The Sub ordinate judge took the date of the execution petition to be "the date of the suit" referred to in the first proviso, and as the mortgage bond was beyond 12 years from that date, he declined to re‑open that transaction. The High Court held that the view taken by the Subordinate Judge was not correct. The learned judges, after making the above observation, observed that, as the mortgage bond of 1925 was within 12 years from the date of the mortgage suit, the decree made in the mortgage suit might be re‑opened.

In Baroda Prosad Sukul v. Durga Prosad Roy (supra) the case of Jagabandhu De v. Akhoy Kumar Sil (supra.) was fol lowed without any discussion and the decision in Baidyanath Dutta v. Mrityunjoy Mukherjee (supra.) was distinguished in the following words:

"As to re‑opening the mortgage bond of 1925, their Lordships observed this is a matter, however, which has to be considered by Court in taking account between the parties and making a new decree'. There was' no specific direction for re‑opening the transaction of 1925."

But, as pointed out in the order of reference, the above observation quoted from the judgment in Baidyanath Dutta's case was made not with reference to the bond of 1925 but in respect of the question whether the money actually advanced by way of loan on 1925 mortgage was Rs. 11,800 or something more.

In Mrityunjoy Mitra v. Satish Chandra Banerjee 48 C. W. N. 361, it was observed by a full Bench of the Calcutta High Court that taking the words of the definition of a suit to which the Act applies, it was clear that it meant that:

"(a) a suit would be a suit to which the Act would apply if it was instituted after the 1st January, 1939, or pending no that date:

(b) although a suit for recovery of a loan had terminated before that date by the decree being passed, it would still be a suit to which the Act would apply if a proceeding in connection with that suit had been instituted after that date or was pending on that date if the scope of that proceeding was recovery of the loan.

In the Bank of Commerce, Ltd., Khulna v. Amulya Krishna Basu Roy Chowdhury 48 C. W. N. 36 F. R., Spens C. J. con sidered the provisions of the Act and observed that by the definition the expression 'suit to which this Act applies' includes not only suits instituted after the first day of January, 1939, and suits pending on that date, but even suits already disposed of, unless proceedings in execution of decrees passed therein had also been completed by that date. In Nripendra Kumar Roy Chowdhury v. Santosh Kumar Das 50 C. W. N. 720 P. 725, the argument that the date of the suit in proviso 1 refers to an application when it is made in course of execution proceedings was rejected as unsound, and it was observed that the word "suit" in that proviso means a suit to which the Act applies and n connection with which relief is claimed by the borrower under section 36 (6) of the Bengal Money Lenders Act or a suit brought by the borrower as contemplated by section 36 (1) itself. Lastly, the same view was taken by the Supreme Court of India in Rai Ram Taran Banerjee Bahadur v. Mrs. D. J. Hill Supreme Court Reporter (1950) C. W. N. Supplement P. 74‑79.

I agree with the abovementioned decisions except Jagabandhu De v. Akhoy Kumar Sil (supra) and Baroda Prosad Sukul v. Durga Prosad Roy (supra).

I would, therefore, answer the questions referred to the Full Bench as follows:

(1) Where the borrower has not filed a suit under section 36 (1) of the Bengal Money Lenders Act, the phrase "date of the suit" in proviso 1 to that section is to be taken to refer to the date of the suit instituted by the lender, and not to the date of the application, for execution of the decree, passed in that suit, in which the debtor applies for relief under section 36, sub section 6, clause (a) (i).

(2) The decisions in Jagabandhu De v. Akhoy Kumar Sil (supra) and Baroda Prasad Sukul v. Durga Prosad Roy (supra) are not correct.

In the result, I would set aside the order of the Subordinate Judge and remand the case for disposal according to law after re‑opening the bond of 1924. The Rule will be made absolute with costs.

I agree with my Lord the Chief Justice.

.‑I agree with my Lord the Chief Justice.

K. M. A. Rule made absolute.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.