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1942 Supreme(Cal) 25
CALCUTTA HIGH COURT
Nilmoni Bhattacharjee - Appellant
Versus
Chandra Madhub Ray & Ors. - Respondent
Civil Revision No. 1432 of 1941
Decided On : 06-02-1942
The main legal principle established is that while the preliminary and final decrees in a mortgage suit cannot be re-opened, the personal decree can be re-opened, and specific directions for re-opening the personal decree were provided.
Headnote:
Re-opening of Decrees - Mortgage Suit - Personal Decree
Fact of the Case:
The Court below held that the preliminary and final decrees in the mortgage suit could not be re-opened, but the personal decree made under Or. 34, r. 6, can be re-opened. The Court directed the re-opening of the personal decree in accordance with specific directions.
Finding of the Court:
The Court found that the preliminary and final decrees in the mortgage suit could not be re-opened, but the personal decree could be re-opened and the Defendant is entitled to the benefit of the instalments. The Court made the Rule absolute in part, allowing the order refusing to re-open the preliminary and final decrees to stand, but directing the re-opening of the personal decree.
Issues: The main issue was whether the decrees in the mortgage suit could be re-opened, and if so, to what extent.
Ratio Decidendi: The Court held that the preliminary and final decrees in the mortgage suit could not be re-opened, but the personal decree could be re-opened. The Court provided specific directions for re-opening the personal decree in accordance with the provisions of the Money-Lenders Act.
Final Decision: The Court made the Rule absolute in part, allowing the order refusing to re-open the preliminary and final decrees to stand, but directing the re-opening of the personal decree. No order for costs was made.
JUDGMENT
1. In our opinion the Court below was perfectly right in holding that the preliminary and final decrees in the mortgage suit could not be re-opened. This is in accordance with the view which we have expressed in Civil Revision No. 1410 of 1941. Rule granted on the 11th November, 1941, against an order of the Subordinate Judge, Hooghly (Mr. M. N. Ghatak), dated the 30th June, 1941. The personal decree made under Or. 34, r. 6, can, however, be re-opened and if no other relief can be granted to the Defendant, at any rate, he is entitled to the benefit of the instalments. As we have indicated in our decision in Civil Revision No. 1410 of 1941, the proper thing to do in such cases is to look to the original claim in the mortgage suit and the amount allowed to the mortgagee in the preliminary decree and calculate as to what should be the correct amount if a new decree is now made in accordance with the provisions of the Money-Lenders Act. From this the amount realised by sale of the mortgaged properties has got to be deducted and for the balance only a personal decree could be made. If the balance shows a negative figure, nothing can be recoverable under it but the mortgagor cannot claim any refund as that would be touching the final decree. The result, therefore, is that the Rule is made absolute in part. The order refusing to re-open the preliminary and final decrees is allowed to stand, but we direct that the Court would re-open the personal decree in accordance with the directions given above.
2. We make no order for costs.
