Srimati Ashalata Debi & Ors Vs.
Sri Jadu Nath Roy & Ors  INSC 54 (26 April 1954)
BHAGWATI, NATWARLAL H.
MAHAJAN, MEHAR CHAND (CJ) MUKHERJEA, B.K.
BOSE, VIVIAN AIYYAR, T.L. VENKATARAMA
CITATION: 1954 AIR 409 1955 SCR 150
Indian Independence, (Legal Proceedings)
Order, 1947, para. 4 (2)-New decree passed in proceedings under section 36 of
Bengal Money. Lenders Act, 1940, pending in the Court of Subordinate Judge,
Alipore, on the 15th August, 1947-Bulk of properties in respect of the new
decree situated in East Pakistan -Appeal filed after 15th August, 1947-Whether
competent to Calcutta High Court Bengal Money Lenders Act, 1940 (Act X of
1940), section 36(2)-New decree-Default made by judgment-debtor-Application by
decree-holder for re- restoration of properties-An application for execution
-Orders on such application-Appealable.
Para. 4(2) of the Indian Independence (Legal
Proceedings) Order,-1947, runs as under:- " 4. Notwithstanding the
creation of certain new Provinces and the transfer of certain territories from
the Province of Assam to the Province of East Bengal by the Indian Independence
(2)Any appeal or application for revision in
respect of any proceedings so pending in any such Court shall lie in the Court
which would have appellate, or as the case may be, revisional jurisdiction
over. that Court if the proceedings were instituted in that Court after the
An application by the decree-holder for
re-restoration of properties by reason of the default made by the judgment-
debtor after a new decree had been passed under section 36 of the Bengal Money
Lenders Act, 1940, was pending in the Court of the Subordinate Judge, Alipore,
on 15th August, 1947, when the bulk of the properties, which were the
subject-matter of the new decree, went to East Pakistan as being situated
there. The application was saved by the provisions of para. 4(1) which provided
for the continuance in the same Court of these proceedings as if the said Act
(Indian Independence Act) had not been passed. It was con- tended that the
appeal to the High Court filed by the decreebolder was not saved by para. 4(2)
as it was filed after 15th August, 1947, as the words "if the proceedings
were instituted in this Court" in the said para. should mean "if the
proceedings could have been instituted in that Court." Held, that the
appeal from the Court of the Subordinate Judge was competent to the Calcutta.
High Court because the only construction that could be put upon this provision
was that the Court having appellate or revisional jurisdiction over that Court
would 151 have such jurisdiction as if the proceedings had been instituted in
that Court after the 15th August, 1947.
An application by the decree-holder was in
substance an application for the execution of the new decree which had been
passed under section 36 of the Bengal Money Lenders Act, 1940. Orders passed on
such applications for execution would be clearly appealable.
The reasoning of the High Court that such an
application was an application in the suit for a special remedy given under a
special law and that the rules of Civil Procedure Code applied and an appeal
lay against such orders because they were deerees within the definition of
section 2(2) of the Civil Procedure Code was not sustainable and could not be
Tirlok Nath v. Moti Ram and Others (A.I.R.
1950 East Punjab 149) referred to.
CIVIL APPELLATE, JURISDICTION: Civil Appeal
No. 69 of 1952.
Appeal from the Judgment and Decree dated the
27th April, 1950, of the High Court of Judicature at Calcutta (Sen &
Chunder JJ.) in Appeal from Original Decree No. 19 of 1948 arising out of the
Judgment and Decree dated the 27th September, 1947, of the Court of the Subordinate
Judge, Third Court of Zillah, 24Parganas at Alipore in Miscellaneous Judicial
Case No. 31 of 1947.
Sukumar Ghose for the appellants.
Bankim Chandra Banerji and R. R. Biswas for
respondents Nos. 1, 2, 8 & 9.
1954. April 26. The Judgment of the Court was
delivered by BAAGWATI J.-This is an appeal against the judgment and decree of
the High Court of Judicature at Calcutta reversing the order of the Third
Subordinate Judge, Alipore, dismissing the respondents applications for
re-restoration of certain immovable properties.
One Romesh Chandra Acharji Choudhury
(deceased) predecessor- in-interest of the appellants borrowed on the 16th
August, 1918, Rs. 1,60,000 and Rs, 73,000 from the predecessors-in- interest of
the respondents under two deeds of mortgage.
There being default in payment of the
mortgage amounts a suit to realise the mortgage securities was filed on the
10th March, 1926, 152 in the Third Subordinate Judge's Court, Alipore. A
preliminary mortgage decree for Rs. 4,21,851.1-6 was passed on the 4th April,
1929, and a decree absolute for sale was passed on the 13th September, 1929.
The mortgaged properties were put up for sale in execution proceedings in 1930
and the decree-holders purchased the properties at auction sales on the 29th
February, 1932, and the 23rd April, 1935, for an aggregate amount of Rs.
2,35,200. These sales were duly confirmed and the auction-purchasers took
delivery of possession of different items of property on different dates
between the 25th June, 1933, and the 9th March, 1936. The aecree-holders
obtained on the 13th December, 1937, a personal decree under Order XXXIV, rule
6, of the Civil Procedure Code for the balance due to them, viz., Rs, 3,30,903.
This personal decree was also executed and some properties of the mortgagors
were purchased by the decree-holders on the 8th August, 1939, for Rs. 3,899 and
delivery of possession of these properties was duly given to them on the 6th
Kshitish Chandra Acharji Choudhury, since
deceased, the predecessor-in-interest of the appellants Nos. 1 to 3 and Jyotish
Chandra Acharya Choudhury, the appellant No. 4, sons of the mortgagor filed on
the 9th December, 1940, a petition under section 36 of the Bengal Money Lenders
Act (Act X of 1940) for reopening the mortgage decree and the personal decree.
By an order dated the 25th August, 1941, the learned Subordinate Judge reopened
the decrees and on the 10th May, 1943, passed a new decree for a sum of Rs.
3,76,324-12-4. The said sum was directed to
be paid by the judgment-debtors to the decree-holders in fifteen equal annual installments.
He also directed the restoration of the properties purchased by the
The present respondents preferred, on the
19th June, 1943, an appeal to the High Court of Judicature at Calcutta and
cross-objections were filed by the said Kshitish Chandra Acharji Choudhury and
appellant No. 4. By their judgment and decree dated the 29th June, 1944, the
High Court affirmed the decree of the Court below with some substantial
variations and 153 passed a new decree in favour of the mortgagors. The
mortgagees were ordered to put the mortgagors in possession of all the
properties they had purchased in' execution of the reopened decrees and render
to them an account of the mesne profits of those properties from the 15th
September, 1941, till they restored or relinquished possession to the
mortgagors of the collection papers of those properties.
The sum of Rs. 3,76,324-12-6 was declared to
be due by the mortgagors to the mortgagees and the mortgagors were to pay the
same in twenty equal annual installments the first of such installments to be
paid on or before the first anniversary of the date on which the mortgagees
restored or relinquished possession of all the properties purchased by them in
execution to the mortgagors or of the date on which they delivered to the
mortgagors the collection papers as therein mentioned, whichever date was
later. The mortgagors were to pay to the mortgagees the successive annual installments
on or before the same date of the succeeding years on which the first installment
became payable and they were also to pay the annual revenue of the aforesaid
properties that would become payable after they were restored to possession
kist by kist, as they fell due, at least three days before the kist dates and
file the challans in the Court below in proof of payment within ten days of the
payments. The road, public works and education cesses and rent due to the
superior landlords were also to be paid similarly by the mortgagors and in default
of payment of any one installment or cesses or rent within the time prescribed,
the mortgagors were entitled to get back possession of the said properties from
the mortgagors and in that event the sum of Rs. 2,39,099 at which the
mortgagees had purchased those properties would be balanced against the amount
then due to them under the decree. If thereafter any amount still remained due
to the mortgagees under the decree they were entitled to apply in the Court
below for a decree for the balance under Order XXXIV, rule 6, of the Civil
Procedure Code. An enquiry was ordered into the mesne profits for the period
between the 15th September, 1941, till the restoration of possession to the
mortgagors and 20 154 the mortgagors were at liberty to set off the amount that
might be decreed in their favour for mesne profits towards the installment that
fell due in the year in which the amount was declared by the Court below and
the next succeeding years till the said amount was wiped off.
Possession was delivered to the mortgagors on
the 5th October, 1944. The delivery of the collection papers was however given
on the 28th March, 1945. The mortgagors were alleged to have committed default
in the payment of the second installment which was due in any event on the 28th
March, 1947, and also in the payment of the revenue kist and the cesses which
were due on or about that date. The mortgagees therefore made applications in
the Court of the Third Subordinate Judge at Alipore on the 6th September, 1946,
and the 18th April, 1947, asking for re-restoration of the properties. Several
defaults were alleged but only two defaults were pressed, one in regard to the
payment of the second installment which was due on the 28th March, 1947, and
the other in regard to the payment of the revenue and the cesses of the
Noakhali properties due also on the same date.
The learned Subordinate Judge rejected these
applications by his order dated the 27th September, 1947, holding that there
was no default in the payment of revenue and cess and that the default in
payment of the second installment though it had accrued was due to the wrongful
acts of the decree- holders themselves and that the, decree-holders were not
entitled to take advantage of their own wrong. An appeal was preferred to the
High Court of Judicature at Calcutta.
The appeal was allowed on the 27th April,
1950. The High Court held that a default had been committed by the mortgagors
and ordered re restoration of the properties.
This appeal has been filed against that order
of the High Court with certificate under article 133(1)(a) of the Constitution.
Shri S. Ghosh appearing for the appellants
before us urged that the bulk of the properties which were the subject- matter
of the new decree had gone to Pakistan after the 26th January, 1950, being
situated in East Pakistan and the High Court at Calcutta had 155 after the 26th
January., 1950, no jurisdiction and power to determine the appeal and to pass
an order relating to the immovable properties situated in foreign territories.
He further urged that the order of rerestoration of the properties was not
appealable and that in any event no default had been committed by the
In support of his first contention reliance
was placed on paragraph 4(2) of the Indian Independence (Legal Proceedings)
Order, 1947, which ran as under:--- "4. Notwithstanding the creation of
certain new Provinces and the transfer of certain territories from the Province
of Assam to the Province of East Bengal by the Indian Independence Act,
(2) Any appeal or application for revision in
respect of any proceedings so pending in any such Court shall lie in the Court
which would have appellate, or as the case may be revisional jurisdiction over
that Court if the proceedings were instituted in that Court after the appointed
day;......... " The applications for re-restoration of the properties were
pending before the Third Subordinate Judge at Alipore on the 15th August.,
1947, and they were saved by the provisions of paragraph 4(1) which provided
for the continuance in the same Court of these proceedings as if the said Act
that is, Indian Independence Act, 1947, had not been passed. But he contended
that paragraph 4(2) did not save the appeal which had been filed by the
mortgagees after the 15th August, 1947. We cannot accept this contention of the
Paragraph 4(2) provided for appeals or
applications for revision in respect of proceedings which were pending in the
Courts after the 15th August, 1947, and laid down that these proceedings by way
of appeal or applications for revision could lie in -the Courts which would
have appellate or revisional jurisdiction over that Court if the proceedings
were instituted in that Court after the 15th August, 1947.
It was contended that for the purpose of this
provision the words "if the proceedings were instituted in that
Court" should be read as meaning "if the proceedings could have been
156 instituted in that Court." This certainly could not be the meaning,
because by reason of the transfer of the territories no proceedings in respect
of the properties which had gone to Pakistan' could ever have been maintained
after the 15th August, 1947, in the Courts concerned. The only construction
which could be put upon this provision was that the Court having appellate or
revisional jurisdiction over that Court would have such jurisdiction as if the
proceedings had been instituted in that Court after the 15th August, 1947. For
the purpose of the appellate or the revisional jurisdiction that Court had to be
treated as the Court in which the proceedings could and should have been
instituted and it goes without saying that if the pro- ceedings could be
treated as -having been properly instituted in that Court the only Court to
which the appeal or the application for revision could lie was the Court which
then had appellate or revisional jurisdiction over that Court. In the case
before us no proceedings could have been instituted in the Third Subordinate
Judge's Court at Alipore in respect of the properties which had gone to East
Pakistan after the 15th August, 1947. But by reason of the fact that these
proceedings were pending in that Court on the 15th August, 1947, the High Court
of Calcutta which had appellate or revisional jurisdiction over that Court was
prescribed to be the Court in which the appeal or the application for revision
in respect of such procedings would lie, because that Court, that is the Third
Subordinate Judge's Court at Alipore, was treated as the Court in which such
proceedings could and should have been instituted after the 15th August, 1947.
Learned counsel for the respondents drew our
attention to the case of Tirlok Nath v. Moti Ram and Others(1). In that case a
suit for possession of land at place X was filed in Court at B in 1943. On the
15th August, 1947, the suit was pending before the Court at B which dismissed
the suit in 1948. An appeal from the decision was filed in the East Punjab High
Court as the place B was included in the East Punjab. On (1) A.I.R. 1050 East
157 objection regarding jurisdiction of the
High Court being taken on the -around that the land in suit was at A, now
included in Pakistan, the High Court held that the suit being pending at place
B on 15th August, 1947, appeal from the decision of that Court lay to the East
Punjab High Court and not to Lahore High Court under paragraph 4(2) of the
Indian Independence (Legal Proceedings) Order, 1947. This decision is on all
fours with the case before us and we are of the opinion that the contention
urged on behalf of the appellants is untenable.
The next contention of the appellants is
The Calcutta High Court considered these
applications as applications in the suit for a special remedy given under a
special law and held that the rules of the Code of Civil Procedure applied and
an appeal lay against the orders because they were decrees within the
definition of section 2(2) of the Civil Procedure Code. We cannot accept this
reasoning. These applications were in truth and in substance applications for
execution of the new decrees which had been passed in favour of the mortgagors
by the High, Court on the 29th June, 1944. The only thing competent to the
mortgagees under the terms of the new decree was to apply for execution of the
decrees on default committed by the mortgagors and the applications made by the
mortgagees in the Court of the Third Subordinate Judge at Alipore were really
applications for execution of the decree though not couched in the proper form
and could be treated as such. If they were treated as such it is clear that the
orders passed on such applications for execution were appealable and no
objection could be sustained on the ground that no appeals law against these
orders. Treating these applications therefore as applications for execution we
see no substance in this contention of the appellants.
if the matter is approached in this way no
objection could be urged by the appellants against the decision of the High
Court. The executing Court could not go behind the decree and it is clear on
the facts that default was committed by the mortgagors both in 158 regard to
the payment of the revenue and the cess as also the second installment under
the new decree.
The contention which was therefore urged on
behalf of the appellants that there was no default committed by the mortgagors
also could not be sustained.
The High Court of Judicature at Calcutta was
therefore rightly seized of the appeal and it had jurisdiction to decide
whether the mortgagors had committed default in carrying out the terms of the
new decree. The appeal being a mere rehearing the appellate Court was entitled
to review the judgment of the trial Judge and declare that it was wrong and
that the decree-holder was entitled to re- restoration. The question whether he
would be able to obtain possession of the immovable properties in fact was
foreign to such an enquiry. By appropriate proceedings in another jurisdiction
he may be able to do so; but this difficulty could not be a deterrent to the
High Court passing the necessary orders for re-restoration of the properties.
The appeal therefore fails and must stand
dismissed.. There will be no order as to costs.