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SUPREME COURT OF INDIA
4th May 1951
H.J. KANIA C.J.I., PATANJALI SASTRI AND S.R. DAS JJ.
Pashupatinath Malia and another - Appellants
Versus
Deba Prosanna Mukherjee - Respondent.
Appeal No. 90 of 1950.
Advocates appeared
Shri Purusottam Chatterji, Senior Advocate (Shri S. N. Mukherjee, Advocate with him), instructed by Shri R. R. Biswas, Agent - for Appellants; Shri Panchanan Ghose, Senior Advocate (Shri P. C. Chatterjee, Advocate with him), instructed by Shri Sukumar Ghose, Agent - for Respondent.
Sub-mortgagee if assignee of mortgage-Right to claim protection under S. 36 (5).
A decree on a mortgage was passed in a suit brought by the representatives in interest of a sub-mortgagee in 1929 and a personal decree for recovery of the amount remaining due after the sale of the mortgaged properties was passed in 1935. In 1936 the decree-holder started execution of the personal decree and attached certain properties of the judgment-debtor. On January 30, 1937, the decree-holder filed a petition, praying that the execution case "may be struck off for non-prosecution, keeping the attachment in force" in view of certain negotiations for amicable settlement, and the Court passed an order that the execution case "is dismissed for non-prosecution, the attachment already effected continuing." On June 2, 1939, tbe decree-holder filed a petition stating that the decree had been adjusted and the attachment may be withdrawn. The Money Lenders Act came into force on September 1, 1940, and on January 2, 1941 the legal representatives of the judgment-debtor filed a suit under S. 36 of the Act praying for re-opening. of the transactions. The question that arose for decision was whether the mortgage decree of 1929 could be reopened under the second proviso to S. 36 (l) of the Act. The suit was dismissed by the trial Court, and appeal from that decision was also dismissed by the High Court. There was further appeal to the Supreme Court.
Held (dismissing the appeal)l :
Per Das J. and Kania C. J.- The order of 30-1-1937 made on a petition filed on that day in execution case No. 118 of 1936 was a final order which brought that execution case to an end and the attachment continued, not because there was a pending execution proceeding but because a special order was made under 0.21, R. 57, Civil p. C. as amended by the Calcutta High Court. Notwithstanding the fact that the attachment was continued, neither the suit in which the mortgage decree was obtained nor any proceeding in execution of that decree was pending on 1-1-1939. The petition dated 2-1-1939 was purely an intimation given to the Court and was not an application such as would initiate a proceeding in execution for any of the purposes mentioned in clauses (a) or (b) or (c) of S. 2 (22) of the Act .. The decree sought to be re-opened was thus not a decree made in Ca suit to whi.ch this Act applies" within the meaning of S. 2 (22) of the Act and as such the plaintiff could not get any relief in view of the second proviso to S 36 (I).
Per Patanjali Sastri, J.-The effect of the order dated 31-1-1937 was not to put an end to the execution proceedings altogether. Order 21, R. 57 of Civil Procedure Code as amended by the Calcutta High Court envisages a dismissal of an "application for execution" while at the same
1. From Pasupatinath v. Davaprosanna, A. L R. 1949 Cal. 266. time continuing subsisting attachment. The continuance of the attachment notwithstanding the dismissal of the execution petition, indicated that the proceeding which had resulted in the attachment was kept alive to be carried forward later on by sale of the attached property. Attachment itself is "a proceeding in execution" and so long as it subsists, the proceeding in execution can well be regarded as pending. In this view, a proceening in execution was pending on January I, 1939, and the decree must be taken to have been passed in "a suit to which this Act applies." Bl)t in as much as the sub-mortgage to the decree-holders predecessor-intitle was bonafide and he obtained by virtue of the sub-mortgage the right to sue the original mortgagor for recovery of the mortgage debt, the decree-holder was a bonafide assignee and his claim for the entire decree debt was protected by S. 36 (5) of the Act.
Order 21, Rule 57 (as amended by the Calcutta High Court.)
Held: Order 21, rule 57 of the Civil Procedure Code, as amended by the Calcutta High Court, leaves three courses open to the executing Court in case it finds it difficult to proceed with the execution case by reason of default of the decree• holder. It may (I) adjourn the proceedings for good reason which will automatically keep the attachment alive or (2) simply dismiss the application which will automatically destroy the attachment or (3) dismiss the application but specifically keep alive the attachment by an express order. The rule, as amended, therefore, contemplates three distinct forms of order, anyone of which may be made by the court in the circumstances mentioned in the rule.
Judgment
Das J.- This appeal arises out of a suit filed by the appellants on 2-1-1941, in the Court of the Subordinate Judge, Asansole. That suit came to be filed in circumstances which may now be stated shortly.
2. A suit had been instituted by one Kumar Dakhineswar Malia against Rameswar Malia, Rani Bhaba Sundari and others for partition of the Searsole Raj Estate. One Bhagabati Charan Mitra was appointed receiver of that estate in that suit. On 10-8-1908, the said receiver with the permission of the Court which had appointed him as receiver granted two mining leases, each for 999 years-one in respect of 5/16 share of the Malias in Mouza Monohar Bahal and the other in respect of 230 bighas in village March Kota-to a firm then carrying on business under the name and style of Laik Banerjee & Company. On the same day, the said receiver with like permission mortgaged these properties to the said firm as security for the due repayment of the loan of Rs. l00,000 advanced by that firm. The Malias joined the receiver in executing the aforesaid leases and the mortgage. As a result of these transactions the firm of Laik Banerjee & Company became the lessees for 999 years of the two properties as well as the mortgagee of the lessors interest in the same. By diverse processes not necessary to be detailed, the appellants have become the successors-in-interest of the mortgagors and the respondent Deva Prasanna Mukerjee has become the successor in interest of the mortgagee under the mortgage of 10-8-1908.
3. On 31-3-1999, Deva Prasanna filed suit No. 78 of 1922 for enforcing the mortgage of 1908. Preliminary decree was passed in the last mentioned suit on 31-7-1928, and a final decree for sale was made on 26-2-1929. In execution of this final decree, the mortgaged properties were sold at a court sale and were purchased by Deva Prasanna at and for Rs. 59,000. This sale was confirmed by the Court on 30-6-1931. A large sum remaining still due to Deva Prasanna, be applied for, and on 30-10-1935, obtained a personal decree to Rs.1,17,179.0-6 against Raja Pramatha Nath Malia who had by inheritance acquired the lessors interest and become the borrower.
4. In 1936, Deva Prasanna started execution case No. 118 of 1936 for execution of the personal decree and attached certain properties alleging that the same belonged to the Raja. The exact date of the attachment does not appear from the printed record. The Raja as Sibait of a certain deity and his two sons, the appellants before us, objected to the attachment of these properties and filed a claim case. Negotiations for settlement started and eventually, on 30-1-1937, a petition (Ex. 2) was filed in the executing Court stating as follows : "The judgment debtor having made special requests to the decree-holder for an amicable settlement of the aforesaid execution case, the decree-holder has agreed to the same. But some time is required to settle the talks and all the terms etc. The judgment- debtor has paid to the decree-holder the costs of this execution amounting to Rs.76.14/ 0, and he having made requests for this execution case struck off for the present on keeping the attachment in force, the decree-holder has agreed to it. It is therefore prayed that under the circumstances aforesaid, the Court may be pleased to strike off this execution case keeping the attachment in force."
5. Neither the original nor & certified copy of the order made on that date by the executing Court on the above petition is forthcoming but the parties have definitely agreed that the order is substantially and correctly entered in column 20 of EX. F which is a certified copy of extract from the Register of applications for executions of decrees relating to execution case No. 118 of 1936. The heading of column 20 is "Date on which execution case was finally disposed of and purport of final order. The entry in column 20 under that head is : "Decree-holder admits receipt of Rs. 76/14/. as costs of this case from the judg
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