Judgement

Appeal (No. 70 of 1947) from an order of the High Court passed in its civil revisional jurisdiction (August 13, 1943) which set aside an order of the Subordinate Judge of Burdwan (July 18, 1942) rejecting the petition of the respondents Nos. 1 to 10 under ss. 30 and 36, sub-s. 6 (a) (ii), of the Bengal Money Lenders Act, 1940 (hereinafter referred to as " the " Act "), for reopening a mortgage decree dated October 5, 1931, passed against the respondents in mortgage suit No. 198 of 1930.

The following facts are taken from the judgment of the Judicial Committee. The questions argued on this appeal were first, a preliminary objection taken by the respondents that this appeal was incompetent; secondly, a preliminary objection taken by the appellant that the revision application to the

Law Rep. 76 Ind. App. 131 ( 1948- 1949) Joy Chand Lal Babu V. Kamalaksha Chaudhury

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High Court from which this appeal was brought was incompetent. Apart from those preliminary objections the only two matters urged against the order of the High Court appealed from were first, that the loan to which the application of the respondents related was a " commercial loan" to which the Act did not apply; and secondly, that the suit in which the application of the respondents was made was not a " suit to which this Act applies " as defined by the Act, and consequently that the respondents were not entitled to any relief under the Act.

On January 6, 1925, the respondents or their predecessors in title executed a registered karbarnama, or bond for obtaining loans for business, in favour of the appellant for securing loans up to a sum of Rs. 25,000. [The material provisions of that document are set out in the judgment of the Board.] The appellant, on August 15, 1930, instituted a mortgage suit, No. 198 of 1930, claiming a sum of Rs. 40,600 and asking for the enforcement of the mortgage security. On October 5, 1931, a compromise decree was passed in the suit for a total sum of Rs. 45,825-8-0 with interest, payable in sixteen instalments, and it was provided that on failure to pay one instalment the whole of the outstanding sum would be due and recoverable with interest at 10 ½ per cent, per annum by sale of the mortgaged properties, and in case of deficiency by sale of the other properties of the mortgagors and also from the persons of the mortgagors by executing the decree. Default was made in payment of the first instalment under the compromise decree, and on August 20, 1932, application was made by the appellant for execution of the decree. In succeeding years further applications in execution were made, and all the properties subject to the decree were eventually sold and purchased by the appellant. The last sale in execution was confirmed in July, 1938, and on an application for possession made by the appellant on September 20, 1938, the court ordered possession to be delivered on November I, 1938, but owing to failure on the part of the execution clerk to return the writ to the court no order noting the fact of delivery of possession and finally disposing of the application for possession was entered on the records of the court until June 3, 1940. Meantime, namely, on November 29, 1938, there was an application by a third party under r. 100, or. 21, which was not disposed of until April, 1939.

On August 30, 1941, respondents Nos. 1 to 10 filed miscellaneous application No. 127 of 1941 in the court of the Subordinate Judge at Burdwan asking for relief under ss. 30 and 36 of the Act. The Act was passed on August 1, 1940, and the following provisions of it were relevant to this appeal

“Section 2. In this Act, unless there is anything repugnant " in the subject or context—

" (4) ‘commercial loan means a loan advanced to any M person to be used by such person solely for the purpose " of any business or concern relating to trade, commerce, "industry, mining, planting, insurance, transport, banking "or entertainment, or to the occupation of wharfinger,