Indra Sekhar Chakravarty v. Bidhumukhi Devi — 1942 DIGILAW 163 (CAL)

JUDGMENT Henderson, J. - The question common to all these Rules is whether, when a new decree in a money suit is passed on an application for review under sec. 36 (6) of the Bengal Money-Lenders Act, the Court has jurisdiction to allow interest for the period between the passing of the original decree and the passing of the new decree. There is nothing in sec. 36 of the Act itself which confers any such power; but the solution of the question depends upon the extent to which sec. 34 of the CPC 'has been affected by the Bengal Money-Lenders Act. 2. On behalf of the debtors it was pointed out that both in an application for review under sub-sec. (6), and in a suit under sub-sec. (1) the substantial relief asked for is the re-opening of an existing decree, and it was suggested that the dale upon which such an order may be made is quite irrelevant for the purpose of calculating interest for the period subsequent to the filing of the suit. This argument would undoubtedly have had force, if sec. 34 of the CPC only empowered the Court to order interest up to the date of the decree. It however specifically empowers the Court to order further interest from the date of the decree to the date of payment, or to such earlier date as the Court thinks fit. Thus, even though the date of the original decree be taken as the date of the decree referred to in sec. 34, the Court has power to order interest on account of a subsequent period. 3. It was conceded on behalf of the decree-holders that the wide powers conferred by the Code in this section have to some extent been cut down by the provisions of the Bengal Money -- Lenders Act. But I have no hesitation in overruling the suggestion that there is anything in sec. 36 of the Bengal Money-Lenders Act which by implication abrogates sec. 34 of the Code of Civil Procedure. On the contrary, sec. 36 begins with the words: Notwithstanding anything contained in any law for the time being in force " 4. Hence the existing laws are only affected to the extent laid down in the section. 36 of the Bengal Money-Lenders Act which by implication abrogates sec. 34 of the Code of Civil Procedure. On the contrary, sec. 36 begins with the words: Notwithstanding anything contained in any law for the time being in force " 4. Hence the existing laws are only affected to the extent laid down in the section. There is nothing in that section itself to justify an inference that the power of the Court to allow interest for a period subsequent to the decree has been taken away. 5. I accordingly hold that the Court has power to order the payment of interest for the period in dispute. Speaking for myself, I should allow interest for the period at six per cent. per annum less any profit derived by the decree-holder from property taken in execution of the decree, subject to the provision of the Bengal Money-Lenders Act that the total interest paid is not to exceed the principal. 6. It now remains to consider the application of this principle to the individual cases concerned. 7. On behalf of the Petitioner (the decree-holder) Mr. Bose put forward an argument to the effect that, if it is found that the new decree will be for a larger sum than the original decree, the application for review must be re fused. I had had to deal with this argument before, and it is based upon the following words of sec. 36 (i): If the Court has reason to believe that the exercise of one or more of the powers trader this section will give relief to the borrower. 7. In most of these cases, the substantial relief obtained by the borrower is the return of property which the decree-holder has purchased for a grossly inadequate sum in execution proceedings. Now when, as in the present case, Mr. Sen on behalf of the judgment-debtor tells me that the new decree will benefit him, while Mr. Bose on behalf of the decree-holder suggests that it will really injure the judgment-debtor, I have no necessity to ask myself whether I have reason to believe that the new decree will give relief to the borrower: I am quite certain that it will. 8. Bose on behalf of the decree-holder suggests that it will really injure the judgment-debtor, I have no necessity to ask myself whether I have reason to believe that the new decree will give relief to the borrower: I am quite certain that it will. 8. Any one with the experience of these cases must have been struck with the great evil which is caused by the failure of decree-holders to make adequate bids for the judgment-debtor's property in execution sales. In my view, the opportunity given to get rid of such sales is the greatest boon which has been conferred on judgment-debtors by sec. 36. On the other hand, if I felt compelled to accept Mr. Bose's argument, I should take very great care to see that in the exercise of my discretion under sec. 34 I awarded interest at a rate sufficiently low to ensure that the new decree would be for a sum slightly less than the original one. 9. On the principle enunciated above, the Petitioner will be awarded Rs. 125 as interest, and Rs. 50 as costs on account of other execution cases and these proceedings. It is not disputed that the Opposite Parties are entitled to instalments, and the Petitioner to an order under sub-sec. (2) (e). 10. The Rule is made absolute and the decree made by the Small Cause Court Judge will " be modified. The Petitioner will get a decree for Rs. 690-5-7. This will be payable in six annual instalments of Rs. 100 and a seventh instalment of Rs. 90-5-7. The first instalment will fall due on the 1st of October, 1942. In default of payment of any instalment, the decree-holder will be put into possession of the property purchased on the 21st of January, 1938, and the purchase money of Rs. 545 will be set off against so much of the amount of the new decree as remains unsatisfied. 11. In this case the learned Munsif rejected the application, firstly, on the strength of the argument put forward by Mr. Bose, with which I have already dealt, and secondly because he thought that the Petitioner is an unscrupulous man. Neither of these reasons is a valid reason and the Petitioner is undoubtedly entitled to relief. 12. On the principle enunciated above the Opposite Party is entitled to Rs. 915 on account of principal, Rs. Bose, with which I have already dealt, and secondly because he thought that the Petitioner is an unscrupulous man. Neither of these reasons is a valid reason and the Petitioner is undoubtedly entitled to relief. 12. On the principle enunciated above the Opposite Party is entitled to Rs. 915 on account of principal, Rs. 247 on account of interest up to the date of the suit, Rs. 330 for subsequent interest, in addition to that costs of the suit in execution cases and the present proceedings Rs. 282. 13. Mr. Sen has drawn my attention to the fact that out of the sale proceeds Rs. 449 and Rs. 285 was paid to other creditors of the Petitioner on rateable distribution. He has also paid a further sum of Rs. 21 on account of another debt of the Petitioner. It is obviously right that the Opposite Party should be reimbursed for these payments. It is clearly impossible to include them as part of the costs of the present proceedings. But I should not be prepared to help the Petitioner in revision unless he consented to have these payments incorporated in the new decree. Mr. Guha gave the necessary consent on his behalf. When these sums are included the total inclusive of all costs comes to Rs. 2,174. From this must be deducted Rs. 150 on account of the Opposite Party's share in the sale proceeds of the property purchased by Opposite Party No. 3. 14. Then in the second place Mr. Sen pressed me that instalments should only be granted on conditions. The case of Promode Nath Sinha Roy v. Sm. Raseshwari Dassi 46 C.W.N. 153 (1941) is an authority for the proposition that conditions may be imposed. The Petitioner is undoubtedly a thoroughly unscrupulous man and has resorted to every conceivable device to evade payment of his debts. But from the ensuing discussion I have been convinced of the difficulty of imposing any conditions that would be really effective. The best way to test the sincerity of the Petitioner is to order fairly substantial instalments. 15. The Rule is made absolute. The Petitioner's application for review will be allowed. There will be a new decree for Rs. 2,074. This will be payable in four annual instalments of Rs. 500, and a fifth instalment of Rs. 74. The first instalment will fall due on the 1st of October, 1942. 15. The Rule is made absolute. The Petitioner's application for review will be allowed. There will be a new decree for Rs. 2,074. This will be payable in four annual instalments of Rs. 500, and a fifth instalment of Rs. 74. The first instalment will fall due on the 1st of October, 1942. The Petitioner will be restored to possession of the property purchased by the decree-holder Opposite Party No. 2, on the 7th of October, 1939. In default of payment of any instalment Opposite Party No. 2 will be put into possession of this property, and the purchase price of Rs. 858 set off against so much of the new decree as remains unsatisfied. 16. In this case the decree-holder is the Petitioner. The learned Small Cause Court Judge has allowed the application for review; but the Petitioner is not entirely satisfied with the result. 17. In the new decree there is a direction that the sale be set aside. Mr. Das contends that this is outside the scope of sec. 36 of the Bengal Money-Lenders Act. The effect will be that, if he is restored to possession in default of payment of any instalment under sub-sec. (2) (e), he will be in possession without any title. On the other hand, Mr. Ahmed contended that, if the sale is not set aside, he will be in possession without a title when the new decree is satisfied in full. 18. It cannot be denied that there is considerable difficulty in this matter. Indeed, Mr. Lahiri went so far as to say that he would be prepared to contend that when the original decree is reviewed, any sale held in execution of it will be automatically set aside. It is not necessary to consider that matter now. But I shall not make the position of the decree-holder more difficult by making an order setting aside the sale when sec. 36 itself makes no provision for such an order, but is specifically confined to making an order for delivery of possession. 19. Possession was delivered on the 11th of February, 1940. The learned Judge has found that the Petitioner has realised Rs. 100 since by way of usufruct of the property. The evidence does not justify any such finding. Kabuliyats have been executed in favour of the Petitioners by certain persons. The learned Judge has found that these documents are bogus. 19. Possession was delivered on the 11th of February, 1940. The learned Judge has found that the Petitioner has realised Rs. 100 since by way of usufruct of the property. The evidence does not justify any such finding. Kabuliyats have been executed in favour of the Petitioners by certain persons. The learned Judge has found that these documents are bogus. There is absolutely no evidence to support such a finding and, in the absence of such evidence the profits derived by the Petitioners must be taken to be the rent reserved in the kabuliyats. 20. The Petitioners are entitled to a decree for Rs. 100 as principal, Rs. 40 as interest up to the date of the institution of the suit; at six per cent. per annum they would get Rs. 96 as interest for the period between the original decree and the re-opened decree But apart from the fact that they may realise. Rs. 31 on the kabuliyats they cannot get further interest for more than. Rs. 60 without exceeding the limits laid down in the Bengal Money-Lenders Act. There is a further sum of Rs. 100 on account of costs of the suit, execution proceedings and the present proceedings. The Rule is made absolute and the decree is modified. There will be a new decree for Rs. 300 payable in six annual instalments. The first instalment will fall due on the 1st of October, 1942. The order setting aside the sale is set aside. If the property is restored to the Opposite Parties under the last order, the purchase price of Rs. 250 will be set off against so much of the new decree as remains unsatisfied.