SRIMA ASHRLATA DEBI AND OTHERS versus SRI JADU NATH ROY AND OTHERS

-Olpril 26.

ljJ)(J [it955:]

· '.SRIMA'.I!I .ASHRLATA' E>EBI" AND 'OTHER:s·'

.• ' .• ' .• . i ' ·:,:~·· : ••. ' SRLJl\.DU NATH AND OTH~R~. ,kby'

[MEHll< CHAND ·MAH'AlfAN[1 ]G;J.,, ·BIJAN "KUMAR MuKHEliJEA, V1V1AN Bbst, N'.·. ti'. "BliAciWATi ·and

-T.t.VENKi!~~X'H~)JJ' =~.'· ' -

'Indian ·Indepetiiience ('liga/' Pi-oceedirigs) ' Order, ·'1947;• ·p<ra. 4 ~

(2)-Neiv decree passed in,,proceedings · -under section. 36 :of Bengal Money Lenders Act, 1940,. pending i,i, _the Coqrt of;, Subordinate fudge, Alipore, on the 15th August, 1947-Bulk of properties in respett:of the new decr~e situaied'itr East'·Pakistdn-'-Appeal filed after 15t'h Augustj' •1947"'-Whether competent to Calcutta :High· Coart-Bengal.Money LendersAct, 1940, (!Act:X.of 1940.);•section 36(2)~New decree-Default :made- by. ,judgment.deb;or7Applicotio~ by, .decree-holder }.or re-restoration of propertiei---:-fl.n qpplicqti'r:>_n .. for , ex~cution ...c.Orders on such applicaiion~Appi:alable: • . ' " . ii--Para. 4{2) of •the lhdian Iiitlependence '(t.egal' 'PrO:,,edirigs) Order,- 1947; runs as Under:~' ' ·' 1 • "4 .. Notwithstanding the. -creation of· · cCrtain newl Provinces and , the transfer .of !=ertain -~erritori~s . ;from the Pi:-ovin~e. 9f ·Assam to the Province of East Bengal b-f the Indian IIJ.dependence Act 1947... . . . . . . . . .. . . . . .. . -' ' . -. . " ' -• . . ' . t . . • ! ' ' , .' ~ ' •• ' • ' ' (2) .Any, appeal or ., application for reyisio.n. in . rt:spect of any proceedings So 'pending ill any ·such., CoUrt shall lie in. 'the' Court which ' ·would have a:j:lpellate, - o"r . as . 'the· i:ase' may· ·be; lrevisional '-..( ~ jurisdiction over that Court .if the·· ·proceedings -were ·instituted.- in that ·Court· after 'the appointed day . ... '. . · .. _ ·~ ·_. · .. "

An application -by ·the .deciee-holder · for ·re~reStoi"ation · of properties by reason of the default made by, the ju<lgment_-debtor after new 9ecree. ha.cl been pass.ed . under, section 36 0£, th~, 13.engal MOney Lenders· Act~ 1940, was pen'.dilig in' the COurt of the Slibordi-nate Judge, Alipore, on 15th August, 1947;'-\Vllen tlie hulk'· of the properties, whiCh Wete thC· su:bje"Ct-matrCr ·of the· rieW' dectee, 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 decree-holder was- ·not' sa:ve<I 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 con-struction that could be put upon .. this provision was that the Cou{C. \ having appellate or revisional jilriSdiCtion over that Court would

SJ~:R.:

have such .iurisdiction as if. t~e 11roc~edings hi!d. . been instituted in that Court after the 15th Aut11st, 1947. · ·

that Court after the 15th ' I -' > Aut11st, •, j ' 1947. ••' ' • ' · · An application by the. dc:cre~-holder was in .substance an appli-cation 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 applicatiop. in the suit for special . r,emedy given under special .law ~nd that .the rules of Civil Procedure Code applied and an appe~ lay against such orders because they were decrees with-in the· definition of section 2(2) of the Civil Procedure Code was not• sustainable and could not be accepted.

Tirlok Nath v. Moti Ram and Others (A.LR, 1950 East Punjab 149) referred to.

CIVIL APPELLATE JurusmcTION : · Civil Appeal No. 69 of 1952.

Appeai from the Judgment and Decree dated the 27th April, 1950, of the High Court of Judicature at Calcutta (Sen & Chu!lder 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, 24-Parganas,. 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

BHAGWATI J.-This is an appeal against the judg-ment and decree of the High Court of Judicature at Calcut~a reversing the order of the Third Subordinate Judge, Alipore, dismissing the respondents' applications for re-restoration of certain immovable properties. ·

One. Romesh Chand~a Acharji Choudhury (deceased) predecess~r-in-interest of. th~ appellants borrowed on the. 16t.h August, 1918, Rs. 1,60,000 and Rs. 73,000 from, t~e . predece,s~ors-in-interest of the respondents und~r".two. deeds .~f m?rtgage. There beipg default in paym~nt of the mortgage amoun~s. suit to realise the mortgage;; secmriti~s wasJiled on the 10th. March, 1926,

Srimati Ashalata DeM and Others. v.

Sri]adu Nath . Royfand Othe~s,.

1954 . Srimati· Ashalata Debi and Others . v. Sri Jadu Nath Roy and Ot!iers. Bhagwati J.

in the Thitd Subordinate Judge's Court, Alipore. preliminary mortgage decree for Rs. 4,21,851-1.Q was passed on the 4th April, 1929, and 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 decree-holders obtained on the 13th December, 1937, 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 July, 1940.

Kshitish Chandra Acharji Choudhury, since deceased, the predecessor-in-interest of the appellants Nos. 1 to 3 and Jyotish Chandra Acharya Choudhury, the appel-lant No. 4, sons of the mortgagor filed on the 9th December, 1940, petition under section 36 of the Be~gal Money Lenders Act (Act X of 1940) for reopen-ing 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 new decree for 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 instalments. He also directed the restoration of the properties purchased by the decree-holders. The present respondents preferred, on the 19th June, 1943, an appeal to the High Court of Judicature at Calcutta and crosg,.objections . were filed by the said Kshitish Chandra Acharji Choudhury and appel-lant 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•

passed 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 tho5e 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 mort-gagors to the mortgagees and the mortgagors were to pay the same in twenty equal annual instalments the first of such instalments to be paid on or before the first anniversary of the date on which the mortgagees restored or relinquished possession of all t_he 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 instalments on or before the same date of the succeeding years on which the first instalment 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 instalment or cesses or rent within the time prescribed, the mortgagees 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 proper-ties 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 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

Srimati Ashalata Debi and Others v. Sri Jadu Nath Roy and Others. Bhagwati J.

Siifrulti ·.Ashalata 'Debi--'and 'Others •V. Sri Jadu·Nath Roy Qnd-OthBrs. Bhagwati ·y.

1.'54 SUP.REM# GQlJR,T RJ</P(),R;TS

the. mortgagors., w~re at liberty to set, .. off .tli.~ . an;iount that might. . be deneed in their .faxour for mesne , profits towards the ,instalment that fell. due •ii;i the .. year in which the amount. was declared .by. t4e Court below and the next succeeding years till the said amount was wiped off. Possessioff was delivered to .the mortgagors on the 5th October, 1944. The ddivery 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 instalment 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 there" fore made applications in the Court of the Third Sub-ordinate 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 defaultnvere pressed, one in regard to the payment of· the second instalment which 'was due oh the -28th March, 1947, and the other in regard to the payment of the revenue and the cesses of the Noal>hali 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 instalment 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 Judica-ture at Calcutta. The appeal· was allowed on the 27th April, 1950. The High Gourt held that default had been committed by the mortgagors and ordered re-restoration of the properties. This appeal has been filed against tliat order of. the High Court with certificate under article 133(-f)(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

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 re-restoration of the properties was not appealable and that in any event no default had been committed by the mortgagors.

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, 1947, ............... .

(2) Any appeal or application for revision in res-pect 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 appel-lant. Paragraph 4(2) provided for appeals or applica-tions 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 O:mrt" ... should· be~ read as meaning "if the proceedings cout4 have; . been 11-86 S. C. India/59

Srimati Ashalatt> Debi and Others v. Sri Jadu Nath Roy and Others-

Bhagwati J.

Srimati Ashalata Debi and Others v. Sri Jadu Nath . Roy and Others. Bhagwaii].

,.._ ,·,.... ._µ

objection regarding jurisdiction of the High Court being taken on the ground that the land in suit was at A, now included in Pakistan, the High Court held that the suit being pending at place 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 Independ-~ ence (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 equally untenable. The Calcutta High Court considered these applications as applications in the suit for special remedy given under special law and held that the ..:i 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 r 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 dear that the ./ orders passed on such applications for execution were appealable and no objection could be sustained on the ground that no appeals lay 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 objec-tion 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 dear on the facts that default was committed by the mortgagors both in

1954 Srimati Ashalaia Debi and Others v. Sri Jadu Nath Roy and Others. Bhagwati].

'954 regard to the payment of the revenue and the cess as Srimati Ashalata also the second instalment under the new decree. Debi and Others The contention which was therefore urged on behalf Sri Jadu v. Nath of the appellants that there was no default committed Roy and Others. by the mortgagors also could not be sustained. BhagwatiJ. The High Court of Judicature at Calcutta was there-fore 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 mere rehearing the appellate Court was entitled to review the judgment of the trial Judge and declare th~t 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 juris-diction he may be able to do so ; but this difficulty could not be 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.

Appeal dismissed.

"---· ,,

1954 May 13

TOLARAM RELUMAL AND ANOTHER

THE STATE OF BOMBAY. [MEHR CHAND MAHAJAN C.J., MuKHERrEA, VIVIAN BosE, BHAGWAn and VENKATARAMA AYYAR JJ."I

Bombay Rents, ·Hotel and Lodging House Rates Control Act~ 1947, (Bombay Act LVII of 1947)-Section 18(1)-Words "in res-pect ·af"-Meaning of-Receipt of nioney 'by landlord 01· any person on his behalf-On executory 'co'fitract-W hether punishable under -,-the Act. Section 18(1) of the Bombay Rents, .......... Control Act 1947 provides:-

"If any landlord either himself or through any person actin& " j or r.urporting to act on his .behalf . ......... receives any fine, pre·- / mium Or other like sum or deposit or any cO~sideration, other tha,n