Prakash Chandra Lahiri v. Piratul Chandra Lahiri — 1981 DIGILAW 248 (CAL)

JUDGMENT A.K. Sen, J 1. AN objection under section 47 of the Code of Civil Procedure which was registered as Misc. Case No. 49 of 1980 having been dismissed by the learned Subordinate Judge, 9th Court, Alipore by his order dated March 30, 1981, the objector has preferred the present revisional application . The application has been heard on contest by the decree-holder opposite party. 2. THE opposite party instituted Title Suit No. 92 of 1962 in the same court of the learned Subordinate Judge for recovery of money due on equitable mortgage with interest. THE principal amount advanced was admittedly a sum of Rs.20,000/-. On May 28, 1975 the court passed a preliminary decree for a sum of Rs.62137.25 being the sum total of Rs.20,000/- for the principal, Rs.14,000/- for the outstanding interest upto the date of the suit Rs.25670/- for interest pendente lite and Rs.2467.25 for costs. That decree was made final on September 16, 1976 and the court directed sale of the suit properties, namely 1, Sarat Bose Road, Calcutta and application of the sale proceeds for meeting the costs and then for satisfaction of the decretal dues. THE decree holder put this decree into execution on February 12, 1976 in Title Execution Case No. 3 of 1977. One amongst the judgment debtors filed an objection under section 47 of the Code referred to above. THE objections raised were to the effect that the particulars of the immoveable property and its value had not been fairly set out in the execution petition, that the decree holder's dues had not been correctly calculated, the sale proclamation is materially incorrect, that there were material irregularities in the proceeding for execution, that the preliminary and final decree do not tally with each other. In this objection without any reference to the provisions of the Bengal Money Lenders Act (Bengal Act X of 1940) (hereinafter referred to as the said Act) an objection was raised to the effect that the judgment debtor could not have been made liable for principal and interest for a sum exceeding twice the principal of the original loan and the court granting such a decree exceeding the said limit acted beyond jurisdiction and contrary to law so that the decree under execution is a nullity. THE decree holder contested such an objection by filing a rejoinder thereto wherein it was pointed out that the judgment debtor including the objector were throughout abusing the process of the court solely with a view to delay and defeat the plaintiff's legitimate dues. It was pointed out how on different occasions the decree was being reopened under the provisions of Order 9 Rule 13 of the Code at the instance of one or the other of the defendants and how objections now raised particularly in regard to the quantum of interest decreed were never raised at the trial. At the hearing of the objection the only ground that was pressed as it appears from the judgment under challenge was to the effect that the amount decreed being more than double the principal sum, such a decree was illegal and beyond the jurisdiction of the court which passed it. The learned Subordinate Judge overruled this objection taking the view that it being a mortgage suit and the law of Dandapat not being recognised in areas beyond the presidency town the decree as passed was not illegal in any manner. He held further that even if it was illegal, that would not render it beyond the jurisdiction of the court passing the decree or render it a nullity. In that view at the Misc. Case was dismissed by the learned Subordinate Judge by the order impugned and feeling aggrieved the objector has preferred the present revisional application. 3. MR. Ghose appearing on behalf of the petitioner in support of the revisional application has raised two points In the first place, he has contended that in view of the provisions of section 39 of the said Act when no borrower could be made liable to pay after the commencement of the said Act on account of interest outstanding on the date upto which such liability is computed a sura greater than the principal outstanding on such date, the court had not the jurisdiction to pass a decree contrary to the mandate of the statute. According to him, a decree passed in contravention of such a provision is a nullity and such an objection is admissible even all the stage of execution. Secondly it has been contended by MR. According to him, a decree passed in contravention of such a provision is a nullity and such an objection is admissible even all the stage of execution. Secondly it has been contended by MR. Ghose that when in substance the judgment debtor sought for relief really under section 36 (6) of the said Act, the learned Judge should have dealt with the application in the light of its substance instead of treating it exclusively as one made under section 47 of the Code. 4. MR. Roy appearing on behalf of the decree holder opposite party has contested both the points raised by MR. Ghosh. According to MR. Roy, section 30 of the said Act can have no application in the present case and in any event the decree as passed cannot be assailed in execution as one pass ed without jurisdiction and as such to be a nullity. So far as second point raised by MR. Ghosh is concerned, it has been contended by MR. Roy that section 36 (6) can have no application to a decree passed after January 1, 1939. He has raised a further plea of bar in contending that the objection based or section 30 having been open to the defendants judgment debtors at the stage of the trial of the suit and the same not having been raised at that stage must be deemed to be barred now on the principles of constructive res judicature. The first point raised by Mr. Ghosh poses no difficulty. Section 30 of the said Act, even assuming that it was applicable to the present transaction, imposes no bar or restriction on the court's power or jurisdiction to pass a decree in respect of a claim of interest beyond the limits specified there under; it merely absolves a debtor of his liability in respect of interest to the extent the same exceeds the amount of the principal. Therefore, a decree for interest when passed in contravention of section 30, may amount to passing of an erroneous decree but it can hardly be said to be a decree passed without or beyond the jurisdiction of the court Though strong reliance is placed by Mr. Therefore, a decree for interest when passed in contravention of section 30, may amount to passing of an erroneous decree but it can hardly be said to be a decree passed without or beyond the jurisdiction of the court Though strong reliance is placed by Mr. Ghosh on certain decisions of the Supreme Court where it has been held that a decree for ejectment passed on consent in the absence of any of the grounds specified under section 13 of the West Bengal Premises Tenancy Act being made out, is a nullity, those decisions are clearly distinguishable because the provision of law under the said Act bars the jurisdiction of the court to pass a decree except on one or more of the grounds specified therein. Section 30 of the said Act and section 13 of the West Bengal Premises Tenancy Act do not stand on the same footing and the decisions based on that provision of the West Bengal Premises Tenancy Act can be of little assistance to the petitioner Dealing with a similar objection in the case of Sadasukh Kabra vs. Jugal Kishore, 61 C.W.N. 67, P. N. Mookerjee, J, had observed "None of the sections, quoted by Mr. Dalal, goes to the root of the Court's jurisdiction. They merely affect the rights of the parties or the question of proof or burden of proof The error, If any, would, in this context, obviously be a mere error of law as distinguished from an error of jurisdiction or to take it at its worst an error in the exercise of jurisdiction and not in its assumption. Such an error would not certainly invalidate the decree." The view we take is thus well supported by the decision as above which furnishes the answer to the first point raised by Mr. Ghosh. 5. BEFORE we proceed to consider the second point raised by Mr. Ghosh, we have to dispose of the plea of bar raised by Mr. Roy. According to Mr. Ghosh. 5. BEFORE we proceed to consider the second point raised by Mr. Ghosh, we have to dispose of the plea of bar raised by Mr. Roy. According to Mr. Roy, no claim for relief under section 36(6) of the said Act can be entertained firstly because the decree in the present case is a post Act decree and secondly, because the grounds on which such relief can be claimed not having been pleaded as a defence at the trial when they could have been so pleaded, it should be held that those are now barred by the principles of constructive res judicata by the decree under execution. Though on the first of these objections raised by Mr. Roy there was at one time some divergence of judicial opinion, it is, however, now well settled that section 36(6) (a) Covers a decree which has been passed after the commencement of the said Act. Reference may be made to the Bench decision of this Court in the case of Sailabala vs. Harish Chandra, 46 C.W.N. 875 which has been reaffirmed in a subsequent Bench decision referred to hereinafter. It has been made clear by this Court in the case of Sk. Md. Ab)el Alias Abed vs. Altaf Hossain (Civil Revision Case No. 309J43 disposed of on April 21, 1943) (since report J in 85 C.W.N, page 1085) that the clause "Which was not fully satisfied by the 1st day of January 1939" should in the context be read not as introducing an additional requirement of the excepted decree but as enacting an exception to the excepted decrees. Though the proviso is not happily worded, it should be interpreted as above as otherwise the substantive provision in section 30 (1) (a), in so far as it limits the liability even when there has been a decree after the commencement of the Act, becomes illusory. In this decision disapproving the view of Henderson, J, to the contrary, this Court reaffirmed the view expressed in the case of Sailabala. 6. THE other objection raised by Mr. Roy, however, requires some serious consideration. It is indeed true that it was open to the defendant-judgment debtors to claim the relief now sought to be claimed under the provision of the Bengal Money Lenders Act in the suit, itself. 6. THE other objection raised by Mr. Roy, however, requires some serious consideration. It is indeed true that it was open to the defendant-judgment debtors to claim the relief now sought to be claimed under the provision of the Bengal Money Lenders Act in the suit, itself. Had such a claim been lodged, the court before passing the decree could have gone into the question and could have decided the issue in the decree itself as to whether the defendants are entitled to any such relief as claimed and that the decree under execution was passed more or less on admission by one of the defendants where, however, this particular issue had been gone into. In such a situation Mr. Roy contends that the claim of such a relief would be barred by the principles of constructive res judicata. He relies on certain decisions of the Supreme Court on the point of application of the principles of constructive res judicata in execution cases. Though attractive, such a contention does not stand scrutiny. Both the provisions in section 30 and section 36 of the said Act are prefaced with a non- obstante clause "Notwithstanding anything contained in any law for the time being in force" and the clause is wide and comprehensive enough to cover and override the rules of res judicata underlying section 11 of the Code of Civil Procedure. But that apart, there exists still more persuasive reasons why such a contention as raised by Mr. Roy cannot be accepted. On the scheme of section 30 and section 36, the legislature clearly expressed its intention to authorise the court to reopen decrees which may be passed even after the commencement of the Act for granting relief there under. But that apart, there exists still more persuasive reasons why such a contention as raised by Mr. Roy cannot be accepted. On the scheme of section 30 and section 36, the legislature clearly expressed its intention to authorise the court to reopen decrees which may be passed even after the commencement of the Act for granting relief there under. Section 30(1) (a) provides "No borrower shall be liable to pay after the commencement of this Act any sum in respect of principal and interest which together with any amount already paid or included in any decree in respect of a loan exceeds twice the principal of the original loan.........whether.........such decree was passed......before or after the commencement of this Act." This provision, therefore, clearly lays down that a borrower would be entitled to relief as envisaged by the provision even when his liability is fixed by a decree passed after the commencement of the Act and necessarily, therefore, in spite of the fact that though the borrower could have claimed such relief by way of his defence to the suit, he did not do so. Section 36(1)(c) empowers the court to release the borrower of all liabilities in excess of the limits specified in clauses (1) and (2) of section 30. Naturally it empowers the court to do so notwithstanding a decree passed after the commencement of the said Act. Such is the combined effect of the two provisions when read together. Hence the invoking or applying the principle of constructive res judicata would render such a provision - nugatory and accordingly, it can well be held that in such a situation the legislature by the non-obstante clause ruled out the application of such a principle of law. Reference may be made to the Full Bench decision of the Allahabad High Court in the case of Srinath vs. Puran Mal I.L.R. 1942 All., 45, THE decision relied on by Mr. Roy are not based on any statutory provision as above and as such, are clearly distinguishable. This Court considered the question as to how far the application of the principles of res judicata can be said to have been ruled out by the non- obstante clause as aforesaid in the case of Sk. Md. Abel alias Abed (supra). Roy are not based on any statutory provision as above and as such, are clearly distinguishable. This Court considered the question as to how far the application of the principles of res judicata can be said to have been ruled out by the non- obstante clause as aforesaid in the case of Sk. Md. Abel alias Abed (supra). There it was held that such a principle would be applicable subject to certain exception and the exception being the plea of constructive res judicata in respect of claim of relief under the Act. There it was observed that when section 36 contemplates reopening of a decree passed after the commencement of the Act for giving relief to the borrower under section 30, the principles of constructive res judicata cannot stand in the way of the court granting such relief though it would be a different thing altogether when the court has refused to grant that specific relief in exercise of its powers once invoked by the borrower. Such refusal would conclude the issue and the legislature never intended that successive proceedings for the same relief should be entertained by the court Mr. Justice Mukherjee observed "Indeed, the principle of res judicata and the provisions of other laws have got to be ignored to a certain extent by the court when it is called upon to exercise its powers under section 36 of the Bengal Money Lenders Act. ... ......But this does not mean that the court in deciding a suit or proceeding under section 36 of the Bengal Money Lenders Act would not be governed by the rules of evidence or procedure and all the provisions of law which are in force in this country, and not merely so much of them as would militate against the exercise of the powers which are expressly conferred by this section are to be deemed to be non-existent. The lender may not certainly plead res judicata as a bar to the court's exercising powers under section 36 but when the court does exercise its powers under this section, and exercise it in a particular way, its decision must be taken to be conclusive between the parties under the ordinary rules of res judicata, and cannot be challenged in any subsequent suit or proceeding brought for identical relief." 7. OR. OR. Pal in the same judgment observed "In my opinion, comprehensive though the words apparently are,' they do not exclude the operation of the law and principle of res judicata. It is safe to assume that by these general words the legislature merely intended to give so much power as was necessary for carrying out the objects of the Act, and not to give any unnecessary powers even at the sacrifice of all other values worth protecting. I thus feel inclined to accept the contention of Mr. Das in this respect. Only I would add that in so far as the relief provided by the section is expressly made to affect a decree or a decision of a court, these opening words will prevent any law or principle of res judicata from affecting that power because of the existence of that decree or decision only. As has been pointed out above, the power given by the section is expressly made to extend in some cases even to the reopening of decrees made after the commencement of this Act. Such express power should not, in my opinion, be nulifield by the application of the law or principle of res judicata on the only ground of the existence of the very decree or decision expressly placed by the section within the ambit of the power." 8. IN that view, we overrule the two pass raised by Mr. Roy as a bar to the entertainment of the second point raised by Mv. Ghosh. Now we proceed to consider the second point raised by Mr. Ghosh on its merits. Here again we are unable to agree with him that the objector ever sought for and,' relief under the said Act in filing the objection which was dismissed by the Id. Judge. He was merely objecting to the executability of the decree raising a plea that again by implication to the effect that a decree passed in contravention of section 30(f) (a) is a nullity. If the objector is to seek relief in terms of section 36(6)(a)(i), he is to do so by applying before the court which passed the decree which in the present case may be the same court as is executing it. If the objector is to seek relief in terms of section 36(6)(a)(i), he is to do so by applying before the court which passed the decree which in the present case may be the same court as is executing it. But even then he is to invite the court to invoke its powers as the court which had passed the decree and in exercise of such powers to give him the relief admissible to him under the said Act on an application incorporating such a prayer. Nothing of the kind can be spelt out from the present objection. But even then it has been strongly contended by Mr. Ghosh that the court should not be too technical on the point and should at least give an opportunity to the objector to amend the objection to convert it into an application under section 36(6) (a) of the said Act and see for appropriate relief. 9. CONSIDERING the facts and circumstances, we feel that such an opportunity should not be shut out altogether. We, therefore, decide to give the objector that opportunity on fulfillment of certain terms. It cannot be denied that the suit on the loan was filed as early as in the year 1962 and the decree was obtained on May 28, 1975 after the defendants successfully had earlier ex-parte decrees reopened on none occasion than one. For all these years the borrowers had paid nothing more than a sum of approximately Rs. 14,400/-. Even upn their own showing they cannot deny a liability of Rs. 40,000/- and costs so long incurred. 10. HENCE, we direct that on the objector and/or the other judgment debtor depositing a sum of Rs. 28,000/- (rupees twenty-eight thousand) in the executing court within three weeks from this date the said court will allow the objector and/or the other judgment-debtors to amend the objection under section 47 and convert it into an application under section 36(6) (a) of the said Act which shall then be heard and disposed of on its merits giving an opportunity to the decree holder to contest the same. The sale shall then be stayed until the disposal of that application and there shall be an unconditional stay of the sale for the aforesaid period of three weeks. The sale shall then be stayed until the disposal of that application and there shall be an unconditional stay of the sale for the aforesaid period of three weeks. In the event the aforesaid amount is deposited by the objector and/or any of the judgment debtors, the decree holder will be at liberty to withdraw the said amount along with all other amounts in deposit without punishing any security and without prejudice to his rights and contentions. In default of the deposit as directed, this leave shall stand recalled and the order in this regard including the order for stay of the sale shall stand vacated. In any view, however, we uphold the order of the Id. Subordinate Judge so far as thereby he dismissed the objection under section 47 of the Code of Civil Procedure and that order stands confirmed. 11. THE revisional application is disposed of accordingly. 12. NO order is made as to costs so far as the present revisional application is concerned.