JUDGMENT Blank, J. - This is an appeal by the Plaintiff, a borrower, from a decision of a learned Subordinate Judge of the 24-Parganas reversing, or rather modifying, the decision of the learned Munsif of the Second Court at Baruipur. The Plaintiff's case in brief is that he borrowed Rs. 25 and Rs. 50 from the Defendant No. 1 on two promissory notes, that he failed to pay and that the Defendant No. 1 filed a suit and obtained a decree with interest at 25 per cent. The Defendant No. 1 purchased in execution Plaintiff's homestead for Rs. 85 on the 14th of July, 1938. The decree is still unsatisfied. The Defendant No. 1 sold the homestead to the Defendant No. 2. The Plaintiff applied for reduction of interest and for instalments. 2. Both the Defendants contested. The Defendant No. 2 alleged that he was a bond fide purchaser for valuable consideration so that the decree could not be reopened. The Defendant No. 1 raised certain defences which are not now material. The learned Munsif found for the Plaintiff full and gave a decree for sums aggregating about Rs. 120 payable in four instalments. 3. The learned Subordinate Judge found, reversing the finding of the trial Court in this respect that the purchase by the second Defendant was a bond fide purchase for value. He held further that the decree could not be re-opened so as to affect the title of the second Defendant. The argument before the learned Subordinate Judge appears to have proceeded on the discussion of sec. 36 (2) (b) of the Bengal Money-Lenders Act, 1940. It was argued before the learned Subordinate Judge, as it has been argued before us, that if a purchaser had acquired his right by private purchases for (sic from) the auction-purchaser, it cannot be said that he acquired his right in consequence of the execution and, therefore his right cannot be immune from the operation of this Act. 4. The learned Subordinate Judge repelled this argument on the consideration that this clause is enacted to protect the right of bona fide purchaser * * * The principle underlying this section is that the right of a bona fide purchaser for value should not be disturbed. 5. The learned Subordinate Judge also held that cl. (c) of sec.
4. The learned Subordinate Judge repelled this argument on the consideration that this clause is enacted to protect the right of bona fide purchaser * * * The principle underlying this section is that the right of a bona fide purchaser for value should not be disturbed. 5. The learned Subordinate Judge also held that cl. (c) of sec. 36 (2) would not apply as the actual possession not being with the creditor, the court cannot ask the Defendant No. 2 to vacate in favour of Harieharan. 6. The learned Subordinate Judge, however, appears to have erred in the ordering portion of his judgment which is that this appeal be allowed *** that the judgment and decree of the learned Munsif be modified and that it shall foe noted in the decree now drawn up that the right of the second Defendant Barada Prasad Mondol shall not be affected by the re-opened decree. 7. We deal with the error in the. next succeeding paragraph. 8. The learned Advocate for the Appellant urges that if he is unsuccessful in his submission on the points of law which arise in the appeal, the position will be that although he is not to have his property restored to him nevertheless he is to pay the debt in full without allowance being made for the money for which the property was sold in execution. This appears to us to be a legitimate grievance and the learned Advocate for the Respondent states that he has no objection to the Appellant being given credit for Rs. 85 being the amount for which Defendant No. 1 purchased Plaintiff's homestead, in the decree of this Court in the event of the appeal otherwise failing, as we are about to hold it must. 9. The main argument of the learned Advocate for the Appellant before us was that sec. 36 (2) (b) was not attracted because the sale, under which Defendant No. 2 claims, was not in consequence of the execution; as the learned Advocate expressed it, it was "the consequence of the execution" after the execution was over.
9. The main argument of the learned Advocate for the Appellant before us was that sec. 36 (2) (b) was not attracted because the sale, under which Defendant No. 2 claims, was not in consequence of the execution; as the learned Advocate expressed it, it was "the consequence of the execution" after the execution was over. The learned Advocate also submitted that there was no finding in the Court of Appeal below that the sale to Defendant No. 2 was in good faith and also that the decision of the lower Appellate Court on the subject of benami was not a proper judgment of reversal; but neither of these arguments was pursued further. Indeed, in view of the first issue before the Court of Appeal below "Is the Appellant a bond fide purchaser for value " and of the finding "I hold that the purchase by the second Defendant was bond fide one for value" we find it difficult to conceive how the argument could have been proceeded with further. 10. Reverting to the main argument, the learned Advocate submitted that cls. (b) and (c) of sub-sec. (2) are to be read together and that cl. (c) contemplates a case where the decree-holder is the auction-purchaser, and cl. (b) contemplates a case where a stranger is the auction-purchaser. No doubt the two sections are to be read together, but we find ourselves unable to read them as conveying the meaning placed before us by the learned Advocate. Rather we find that sub-sec. (c) contemplates the case where the property of the judgment-debtor, acquired by the decree-holder in consequence of the execution of the reopened decree is in the possession of the decree-holder. This has been found by the Courts below not to be the fact in this case. Therefore, in our opinion, sub-sec. (c) cannot apply. Reading sub-sec. (b) we find that it provides for the case where " any person, other than the decree-holder " has acquired any right bond fide " in consequence of the execution of the re-opened decree." Here we find Defendant No. 2, (a person other than the decree-holder) has acquired bond fide (as found by the final Court of fact) rights. If he has acquired them in consequence of the execution of the re-opened decree, Defendant No. 2 is within the protection of the clause. 11.
If he has acquired them in consequence of the execution of the re-opened decree, Defendant No. 2 is within the protection of the clause. 11. Thus the question is whether the Defendant No. 2 has acquired them in consequence of the re-opened decree. The learned Advocate argues that " in consequence of the execution" does not cover subsequent transfer. His submission is that " in consequence of the execution " means something that follows directly on the execution and not remotely. Defendant No. 1 purchased the homestead in execution on the 14th of January, 1938; the date of the kobala, Ex. C, by which it was sold to Defendant No. 2 is the 25th of August, 1941. It appears that the Plaintiff took symbolical delivery of possession in December, 1938, and that execution was started in 1941 for the balance of the decree, the case being disposed of in August, 1941. On the facts of the present case we cannot hold that the purchase by Defendant No. 2 was so remote in point of time that it cannot be considered to be " in consequence of the execution." The learned Advocate sought to argue that " in consequence " must mean " in direct consequence," but this has never been held and we find nothing either in the statute or in principle why it should be so held. In our opinion, the words " in consequence of " ought to be construed in the ordinary Dictionary meaning. In the Oxford English Dictionary the meaning of " consequence " is given as " a thing or circumstance which follows as an effect or result of something preceding," and in particular, the phrase " in consequence of " means " as a result of." Thus there may be a connection of the nature of the connection of cause and effect or there may be a connection of the nature of a result, i.e., something which happens after something else and is in some way connected with it. In our opinion that is all that the statute contemplated, viz., that the right should be acquired by a person other than the decree-holder as a result of the execution of the re-opened decree.
In our opinion that is all that the statute contemplated, viz., that the right should be acquired by a person other than the decree-holder as a result of the execution of the re-opened decree. Cases may arise in which there may be a lapse of many years or in which there may be a number of intervening transactions, but we are not concerned with such cases and we do not purport to decide anything concerning them. Suffice it to say that in the present case the lapse of time is inconsiderable and the decree-holder auction-purchaser has transferred to one person, that person being the Defendant No. 2. In our opinion the Defendant No. 2 has acquired his right in good faith (as has been found) and in consequence of the execution of the re-opened decree. Had the re-opened decree not been executed the Defendant No. 2 could not have acquired his right and on the facts of the present case we consider that to be enough to bring him within the protection of the clause. 12. The learned Advocate, also sought to argue that considerations relating to restitution under the CPC also arose in the present case. He submitted that sec. 36 had only added another method of setting aside a decree to those provided for in the Code of Civil Prccedure and he placed before us the decisions in Satish Chandra Ghose v. Rameswari Dasi (1914) 22 C.L.J. 409 and Abdul Rahaman v. Surafat Ali (1915) 22 C.L.J. 412. We have listened to his discussions with attention but we do not find that it adds anything useful to what is stated in the section itself. Rather we find ourselves unable to accept his submission that sec. 36 merely adds a method of setting aside a decree. In our opinion sec. 36 provides rights and remedies sui generis and considerations relating to restitution under the CPC are not, in our opinion, illustrative. On the foregoing considerations the appeal is dismissed with costs to the Defendant No. 2, subject to the modification already mentioned. Edgley, J. I agree.