Civil Appeal No 90 of 1950
Appeal against the Judgment and Decree dated the 22nd July 1948 of the High Court of Judicature at Calcutta K C Mitter and KC Chunder J J in appeal from Original Decree No 49 of 1942 arising 74 574 out of Decree dated the 8th September 1941 of the Subordi nate Judge at Asansole in Suit No 1 of 1941
Purusottam Chatterji section N Mukherjee with him for the appellants
Panchanan Ghose P C Chatterjee with him for the respondent
May 4 the following judgments were delivered  DAS J
This appeal arises out of a suit filed by the appellants on January 2 1941 in the Court of the Subordi nate Judge Asansole
That suit came to be filed in circum stances which may now be stated shortly
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 August 10 1908 the said receiver with the permis sion of the Court which had appointed him as receiver grant ed two mining leases each for 999 years one in respect of 516 share of the Malias in Mouza Monohar Bahal and the other in respect of 230 bighas in village Marich 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 100000 advanced by that firm
The Malias joined the re ceiver 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 mortga gee under the mortgage of August 10 1908
575 On March 31 1922 Deva Prasanna filed suit No 78 of 1922 for enforcing the mortgage of 1908
Preliminary decree was passed in the last mentioned suit on  July 31 1928 and a final decree for sale was made I on February 26 1929
In execution of this final decree the mortgaged properties were sold at a Court i sale and were purchased by Deva Prasanna for  Rs 59000
This sale was confirmed by the Court on June 30 1931
A large sum remaining still due to Deva Prasanna he applied for and on October 30 1935 obtained a personal decree for Rs 127179 0 6 against Raja Pramatha Nath Malia who had by inheritance acquired the lessors  interest and become the borrower
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 January 30 1937 a petition exhibit 2 was filed in the exe cuting 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 being struck off for the present on keeping the attachment in force the decreeholder 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 Neither the original nor a certified copy of the order made on that date by the executing Court on the 576 above petition is forthcoming but the parties have definite ly agreed that the order is substantially and correctly entered in column 20 of exhibit 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 D H admits receipt of Rs 76 14 as costs of this case from the JD
The execution case is dismissed for non prosecution the attachment already effected in this case continuing
30th January 1937
 The entry under column 11 of that very exhibit reads as follows  Claim case automatically drops as the execution case is dismissed
It is therefore rejected without any sort of adjudication
30th January 1937
 In May 1937 the Searsole Raj Estate came under the charge of the Court of Wards
By a Kobala executed with the permission of the Board of Revenue Raja Pramatha Nath Malia and his two sons Kumars Pashupati Nath Malia and Kshitipati Nath Malia represented by Kumar Kshitipati Nath Malia as the Manager of the Searsole Raj Wards Estate conveyed a property known as Senapati Mahal to Deva Prasanna in full settlement of his claim under the personal decree against the Raja
By an agreement of even date Deva Prasanna agreed to reconvey Senapati Mahal to the Kumars if he was paid Rs 90000 within two years from that date
Senapati Mahal orginally belonged to the Raja but had been tranSferred by him to his two sons
A creditor however had filed a suit under sec tion 53 of the Transfer of Property Act challenging that transfer and had actually got a decree declaring that trans fer as fradulent and void as against the creditors of the Raja 577 An appeal was filed by the Kumars which was pending at the date of the Kobala of January 4 1939 and in the circum stances it was considered safer to join the Raja in the last mentioned Kobala in favour of Deva Prasanna
On June 2 1939 a petition was filed in the Court of the Subordinate Judge Asansole on behalf of Deva Prasanna as the decree holder
It was headed Money Execution Case No 118 of 1936
The relevant portions of this petition were as follows That the above execution case was disposed of on the 30th January 1937 with the attachment of the properties subsisting since then the decree put into execution in the above case has been adjusted after remission of a large amount of interest by the out and out sale of certain properties by a registered Kobala dated 4th January 1939         So there is no longer any need of the said attachment remaining subsisting
It is therefore prayed that the attachment may be withdrawn
 On the same day the following order was made on that petition  Heard learned pleaders for the parties
They jointly ask me to cancel the attachment existing by special order in Money exhibit 118 of 1936 though that case was dismissed
Order The said attachment is cancelled and the decree in question is recorded as adjusted as stated by learned plead er for the decree holder and pleader of the judgment debtor according to the adjustment mentioned but not detailed in this petition of to day
Make necessary notes and send this petition to the District Record Room
 In the remarks column No 22 in exhibit F the following entry was made  The said attachment is cancelled and the decree in question is recorded as adjusted as stated by learned 578 pleader for the DH and the pleader of the Judgment Debtor according to the adjustment mentioned but not detailed in this petition of to day
Dated 2nd June 1989
 The Raja died in August 1940 leaving the two appellants as his sons and legal representatives
The Bengal Money Lend ers Act 1940 Bengal Act X of 1940 hereinafter called the Act came into force on September 1 1940
On January 2 1941 the appellants who as the legal representatives of the Raja became borrowers within the meaning of the Act filed the suit out of which the present appeal has arisen
The suit was filed by the appellants against the respondent under section 36 of the Act praying for reopening the trans actions and taking accounts and for release from all liabil ities in excess of the limits specified by law
In short they asked the Court to give them relief by exercising the powers given to the Court by section 36 of the Act
There was also a prayer for reconveyance of the Senapati Mahal
The respondent filed his written statement setting up a variety of defences rounded on merits as well as on legal pleas in bar
On May 8 1941 the Subordinate Judge settled the issues and fixed June 9 1941 for a preliminary hear ing of the suit and particularly of such of the issues as have been based on the pleas in bar Eventually the case was taken up for preliminary hearing on September 4 1941 and by his judgment delivered on September 8 1941 the learned Subordinate Judge dismissed the suit on issue No 2 which was as follows Does the plaint disclose a valid cause of action for the suit  The appellants preferred an appeal to the High Court at Calcutta
Although the High Court RC Mitter and KC Chunder JJ did not accept all the reasonings on which the learned Subordinate Judge had based his decision they however agreed that the appellants could get no relief as the decrees in suit No 78 of 1922 could not be reopened as they were not passed in 579 a suit to which this Act applies and consequently dis missed the appeal
The appellants have now come up on appeal before us after having obtained a certificate from the High Court under section 110 of the Code of Civil Procedure
Learned Advocate appearing in support of this appeal before us has contended that the High Court was in error in holding that the decrees in Suit No 78 of 1922 were not liable to be reopened under the second proviso to section 36 1
Learned advocate for the respondent while joining issue on this point also raised a point which however did not find favour with the High Court namely that the respondent as a bona fide assignee for value of the mortgage debt was protected by sub section 5 of section 36
It is quite clear that if either of the two points is decided against the appellants this appeal must fail
The main provisions of section 36 1are in the follow ing terms  Notwithstanding anything contained in any law for the time being in force if in any suit to which this Act ap plies or in any suit brought by a borrower for relief under this section whether heard ex parte or otherwise the Court has reason to believe that the exercise of one or more of the powers under this section will give relief to the bor rower it shall exercise all or any of the following powers as it may consider appropriate namely shall a reopen any transaction and take an account between the parties b notwithstanding any agreement purporting to close previous dealings and to create new obligations reopen any account already taken between the parties c release the borrower of all liability in excess of the limits specified in clauses t and 2 of section 30 d if anything has been paid or allowed in account on or after the first day of January 1939 in respect of the liability referred to in clause c order 580 the lender to repay any sum which the Court considers to be repayable in respect of such payment or allowance in account as aforesaid e set aside either wholly or in part or revise or alter any security given or agreement made in respect of any loan and if the lender has parted with the security order him to indemnify the borrower in such manner and to such extent as it may deem just
 It will be noticed a that the provisions of this section apply notwithstanding anything contained in any law for the time being in force b that the powers conferred on the Court or to be exercised either in any suit to which this Act applies or in any suit brought by a borrower for relief under the section and c that the Court is called upon to exercise all or any of the powers conferred on it by the section if the Court has reason to believe that the exercise of one or more of the powers will give relief to the borrower
In the present case the borrowers have insti tuted a substantive suit for relief under section 36 and therefore if there was nothing also in the section and the Court had the requisite belief the Court could exercise all or any of the powers and give relief to the borrowers in terms of the prayers of the plaint
There are however two provisions to sub section 1 of section 36
The relevant portion of the second proviso is expressed in the words following Provided that in exercise of these powers the Court shall not i     ii do anything which affects any decree of a Court other than a decree in a suit to which the Act applies which was not fully satisfied by the first day of January 1939 or     The proviso makes it quite clear that in exercise of the powers the Court cannot reopen or otherwise affect a decree of a Court unless such decree is one which was passed in a suit to which this Act applies and  which was not fully satisfied by January 1 1939
In the light of the decision of the Full Bench of the 581 Calcutta High Court in Mrityunjay Mitra vs Satis Chandra Banerji1 which was approved by the Privy Council in Jadu Nath Roy vs Kshitish Chandra Acharyya2 it has not been contended in view of the fact that the personal decree for the balance remained unsatisfied on January 1 1939 that the decrees in Suit No 78 of 1922 were fully satisfied within the meaning of the above proviso
Therefore the only thing that remains to be ascertained is whether the decrees were passed in a suit to which this Act applies
 Section 2 22 of the Act is as follows 2
In this Act unless there is anything repugnant in the subject or context 22 Suit to which this Act applies means any suit or proceeding instituted or filed on or after the 1st day of January 1939 or pending on that date and includes a pro ceeding in execution a for the recovery of a loan advanced before or after the commencement of this Act b for the enforcement of any agreement entered into before or after the commencement of this Act whether by way of settlement of account or otherwise or of any security so taken in respect of any loan advanced whether before or after the commencement of this Act or c for the redemption of any security given before or after the commencement of this Act in respect of any loan advanced whether before or after the commencement of this Act
 The words instituted or filed on or after the 1st day of January 1939 or pending on that date have been read and understood as qualifying the words any suit or proceed ing in the beginning of the definition as well as the words proceeding in execution occurring further down see per Spens CJ in Bank of  Commerce Ltd vs Amulya Krishna 3
Accordingly it has 1 ILR 11944 2Cal 376 2 LR 76 IA 179 at p 190
3 AIR 1944 FC 18
582 been held in Ram Kumar De vs Abhoya Pada Bhattacharjee 1 that where a decree is such that the suit in which it was passed had terminated before January 1 1939 and no pro ceeding in execution was started or was actually pending on or after that date it is not a decree in a suit to which this Act appliesand cannot be reopened
The same view was upheld by a Special Bench of the Calcutta High Court in Aparna Kumari vs Girish Chandra 2which overruled two earlier decisions to the contrary
The construction put upon section 2 22by the Special Bench and the reasons given by them appear to us to be well founded
In the case now before us the Suit No 78 of 1922 was instituted and all the three decrees were passed long before the specified date
The only question that has therefore to be consid ered is whether any proceeding in execution was pending on or after that date
The answer to this question will depend on the true meaning and effect of the orders made by the executing Court i on January 30 1937 and ii on June 2 1939
As to i It is not disputed that the order of January 30 1937 was made under Order XXI rule57 as amended by the Calcutta High Court
Order XXI rule 57 is expressed in the following terms  Where any property has been attached in execution of a decree but by reason of the decree holder s default the Court is unable to proceed further with the application for execution it shall either dismiss the application or for any sufficient reason adjourn the proceedings to a future date
Upon the dismissal of such application the attachment shall cease
 The marginal note of the rule is determination of at tachment
The reason why rule 57 was introduced in the Code of 1908 has been explained by Rank in CJ in Shibnath Singh Ray vs Sheikh Saberuddin Ahmad3 as follows 1  2 3 ILR at pp
421 422 583 Rule 57 of Order XXI was a new provision introduced in 1908
It is evident from the language of the rule itself and it is still more evident from the circumstances under which it was passed that it was intended to provide a remedy for the grievance or inconvenience which is apt to arise where after an attachment in execution the applica tion for execution cannot further be proceeded with by reason of the decree holder s default
This was and still is a very common case
The decree holder makes some informal arrangement to give the judgment debtor time with out obtaining full satisfaction of the decree the applica tion for execution is not further prosecuted it is not withdrawn neither party attends
In these circumstances the object of the rule is to say that the Court must make either an order for adjournment or an order of dismissal
The reason why it was necessary to require the Court if it did not adjourn a proceeding to a definite date to dismiss the application for execution formally and definitely can be amply illustrated from the decided cases
In the absence of a definite order of dismissal the files of the Courts became encumbered with a number of applications for execution which were water logged and derelict and a practice arose whereby such applications were ordered to be struck off  This was a practice not justified by the Code and in cases where attachments in execution had already been entered the question arose whether the effect of an order striking off  was that the attachment made upon application for execution was itself struck off or whether it remained notwithstanding such an order
Many other awkward and important questions arose out of this practice and the object of rule 57 was to ensure that this illogical and inconvenient practice should be stopped
Applications for execution were to be definitely dismissed if they were not adjourned to a future date
The object of the last sentence in rule 57 is to settle the question whether when the application in execution is dismissed any attachment made under that application should fall to the ground or should subsist and 584 the legislature has provided that it is to fall to the ground
 The new rule thus  introduced left two distinct courses open to the executing Court in the situation envisaged by the rule
Each course had its advantage as well as its disadvantage
Thus the adjournment of the execution pro ceedings kept the attachment alive without any special direction
While the adoption of this course helped bona fide arrangement between the decree holder and the judgment debtor as to the time and manner of satisfaction of the decree it was calculated also to encourage desultory proceedings resulting in undesirable congestion in the files of the Executing Court by keeping alive so many execution proceedings
On the other hand while the dismissal of an application in the circumstances mentioned in the rule had the merit of preventing a congestion of the file by finally disposing of the application by a final order it was calcu lated to discourage decreeholders from giving even reasona ble accommodation to the judgment debtor on account of the destruction of the attachment which left the judgment debtor free to deal with the property to the detriment of the decreeholder after the attachment ceased
It was evidently with a view to preserve the advantage of a dismissal and at the same time to avoid the disadvantage of the rigid rule of cesser of the attachment that the Calcutta High Court amend ed rule 57 by adding the words unless the Court shall make an order to the contrary at the end of the last sentence of that rule
The rule thus amended leaves three courses open to the Executing Court in case it finds it difficult to proceed with the execution case by reason of the default of the decree holder
It may 1 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 any one of which may be made by the Court in the 585 circumstances mentioned in the rule
The question before us is as to the category in which the order made on January 30 1937 in Execution Case No 118 of 1936 falls
It will be recalled that the order of January 30 1937 was made on a petition Exhibit 2 filed on that day in Execution Case No 118 of 1936
Great stress was laid by the learned advocate for the appellants on the words struck off for the present occurring in the body of that petition
It will be noticed that those words formed part of the request of the judgmentdebtor which was being recited in the petition
In the actual prayer portion the decree holder did not use the words for the present but only asked the Court to strike off the execution case keeping the attachment in force
 Further apart from what the parties wanted the Court made its intention clear in the very order that it passed and which is entered in column 20 of Exhibit F
The Court regarded the willingness of the the decree holder to enter into a long and protracted negotiation with the judg ment debtor as evidence of unwillingness on the part of the decree holder to diligently prosecute the execution proceedings and accordingly dismissed the execution case for non prosecution but thought fit to expressly keep alive the attachment
It is quite obvious that the Court made an order of the third kind mentioned above
The three forms of order permissible under rule 57 as amended by the High Court are quite distinct and independent of each other and there is no room for their overlapping
If the mere continuation of attachment will automatically convert an express order of dismissal of the execution application which is a final order into an order of adjournment which is not a final order then there was no point in the High Court taking the trouble of amending rule 57 at all
The Court could by simply adjourning the proceedings automatically continue the attachment without any express direction in that behalf
The fact that the Court gave an express direction that the attachment should continue clearly indicates that the 586 Court intended to make a final order of dismissal
Again the heading of column 20 in Exhibit F clearly indicates that only a final order is to be entered in that column
The fact that the order was entered in that column affords some justification for the conclusion that the Court made a final order of dismissal
That the claim case was automatically dropped is yet another indication that the execution case was at an end
The fact that the judgment debtor had paid the full costs of the execution case is also a feature which goes to show to a certain extent at any rate if not deci sively that the execution proceeding was finally disposed of by the order
The following endorsement appears on the petition exhibit 2 a dated June 2 1939 Heard learned pleaders for the parties
They jointly ask me to cancel the attachment existing by special order in Money exhibit 118 of 1936 though that case was dismissed This endorsement also clearly shows that the Court itself understood that the order that it made on January 30 1937 was a final order of dismissal and that the attachment had been continued by a special order
On a consideration of all these matters I have not the least doubt in my mind that the order of January 30 1937 was in form and in substance a final order of dismissal of the Execution Case No 118 of 1936 and that the attachment was continued by a special order such as is contemplated and authorised by the amend ment made by the Calcutta High Court in rule 57
Learned advocate for the appellants contended that if the execution case came to an end the attachment could not be left hanging in the air
There is no substance in this argument
Ordi narily an attachment is supported by an execution case and if the execution case is simply dismissed the attachment must fail with it
But rule 57 as amended expressly empow ers the Court to dismiss an execution application but at the same time to keep alive the attachment by a special order
That is what was done in this case
Here the attachment does not to use the expression of the learned advocate for the appellants 587 hang in the air
It rests upon the solid foundation of a special order which rule 57 as amended in terms authorises the Court to make
The continuance of the attachment in the circumstances needs no execution proceeding to support it
Take the case of an attachment before judgment
Under Order XXXVIII rule 11 where after an order of attachment before judgment a decree is passed in favour of the plaintiff it is not necessary upon an application for execution of such a decree to apply for re attachment of the property
It means that the attachment continues and the judgmentdebtor cannot deal with the property to the disadvantage of the decree holder
After the decree is passed the attachment continues but nobody will say that although there has been no applica tion for the execution of the decree at any time by the decree holder there is nevertheless an execution proceed ing pending merely because the attachment continues
Here also the attachment subsists and rests only upon the terms of Order XXXVIII rule 11 and without any proceeding
Such attachment cannot be called a proceeding in execution for none was ever initiated after the decree was passed
In my judgment the order of January 30 1937 was a final order which brought the Execution Case No 118 of 1936 to an and and the attachment continued not because there was a pend ing execution proceeding but because a special order was made under Order XXI rule 57 as amended by the High Court
As to ii Learned advocate for the appellants then contended that the petition exhibit 2a dated June 2 1939 amounted to a proceeding in execution and as that was insti tuted and was pending after January 1 1939 the proceedings came within the definition in section 2 22of a suit to which this Act applies
I do not think this argument is sound
The petition Ex2a was not really an application at all
See Raja Shri Prakash Singh vs The Allahabad Bank Ltd 1
In substance it was nothing but a certification by the decree holder of the satisfaction of the decree
The mere fact 1 33 CWN 267 AIR 1929 PC 19 588 that the document was in the form of a petition could not convert what was really the usual certifying procedure into a proceeding in execution for recovery of a loan or for enforcement of any agreement
It was purely an intimation given to the Court by the decreeholder that the decree had been satisfied out of Court and the prayer for withdrawal of the attachment was merely consequential and would follow as a matter of course on full satisfaction of the decree being recorded
The order made on that petition also shows that the decree was recorded as adjusted and the attachment was cancelled
In my judgment that petition exhibit 2a 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 section 2 22 of the Act
For reasons stated above the decrees sought to be reopened were not decrees made in a suit to which this Act applies
Suit No 78 of 1922 was neither instituted on or after January 1 1939 nor was it pending on that date all the three decrees having been passed long before that date
Nor was any proceeding in execution such as is contemplated by section 2 22 instituted or pending on or after that date
The Execution Case No 118 of 1936 was at an end on January 30 1937 and the petition of June 2 1939 was not an application at all and was certainly not a proceeding in execution within the meaning of section 2 22 of the Act
This conclusion is sufficient to dismiss this appeal and it is not necessary for us to consider the other question raised by the respondent on the strength of section 36 5 of the Act and I express no opinion on that question
The result is that this appeal must stand dismissed with costs and I order accordingly
KANIA CJ I agree
PATANJALI SASTRI J
The facts bearing on the dispute in this appeal are fully stated in the judgment of ray brother Das which I have had the advantage of reading and it is unnecessary to recapitulate them here
589 The appellant mortgagor seeks in these proceedings the reliefs provided by the Bengal Money lenders Act 1940 hereinafter referred to as the Act in respect of a decree debt payable by him
The respondent who represents the sub mortgagee decree holder invokes the protection of two exemptions contained in the Act 1 Section 86 1 proviso ii which exempts inter alia any decree other than a decree in a suit to which this Act applies which was not fully satisfied by the first day of January 1939
This raises a dispute as to whether the respondent s decree was passed in a suit to which the Act applies
2 Section 36 5 which exempts the rights of any assignee or holder for value if the Court is satisfied that the assignment to him was bona fide and that he had not received the notice re ferred to in clause a of sub section 1 of section 28
This raises the question whether a sub mortgagee is an assignee within the meaning of the Act
On the first question a suit to which this Act applies is defined in section 2 22 as meaning any suit or pro ceeding instituted or filed on or after the 1st day of Janu ary 1939 or pending on that date and includes a proceeding in execution for among other things the recovery of a loan advanced before or after the commencement of this Act
 This definition has been construed as requiring that the pro ceeding in execution referred to therein should be pending on 1st January 1939 and the question accordingly arises whether the order of the executing court dated 30th January 1937 which purported to dismiss the respondent s execution case for non prosecution while continuing the attachment already effected terminated the proceeding in execution which had resulted in the attachment
It was said that the order was made in accordance with Order XXI rule 57 of the Civil Procedure Code as amended by the Calcutta High Court and must therefore be taken to have been intended to put an end to the execution proceeding altogether
I am not satisfied that such was the result of the dismissal
The amendment which added the words unless the court shall make an order to the contrary 200 at the end of the rule envisages a dismissal of an applica tion for execution while at the same time continuing a subsisting attachment
The dismissal of 30th January 1987 must therefore be taken to be a dismissal of the execution application then before the court and cannot be taken to have any wider operation
On the other hand the continu ance in express terms of the attachment notwithstanding the dismissal indicates 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 longas it subsists the proceeding in execution can well be regarded as pending
In In re Clagett s Estate Fordham vs Clagett 1 Jessel MR declared that a pending matter in any court of justice means one in which some proceeding may still be taken
The attachment was cancelled by the court only on 2nd June 1939 when the decree in question was recorded as adjusted and then and not before could execu tion of the decree be properly considered to have terminat ed
In this view a proceeding in execution was pending on the 1st day of January 1939 and the respondent s decree must be taken to have been passed in a suit to which this Act applies   with the result that the respondent s claim to exemption under proviso ii to sub section 1 of sec tion 36 of the Act must fail
I am however of opinion that the respondent s claim to recover his decree debt is protected under section 36 5
There is no question here but that the submortgage to the respondent s predecessor in title was bona fide
Nor could he have received the notice referred to in clause a of  sub section 1 of section 28 as the transaction took place long before the Act was passed
It is not disputed that section 36 5 applies to pre Act debts
See Renula Bose vs Manmatha Nath Bose2
The only question therefore is whether the respondent as sub mortgagee is an assignee within the meaning of sub section 5 of section 36
The learned 1 2 LR 72 IA 156 591 Judges in the court below held that he was not following an earlier decision of their own court in Promode Kumar Roy vs Nikhil Bhusan Mukhopadhya1
That decision however was reversed by the Privy Council in Promode Kumar Roy vs Nikhil Bhusan Mukhopadhya2 where their Lordships dealt with the question now before us in the following terms  It was suggested in the judgment of Mitter J with which Waight J agreed and in the argument for the re spondents that if a sub mortgagee were an assignee  within section 36 sub section 5 of the Act
 certain difficul ties and anomalies would result
Their Lordships cannot agree with this suggestion
They express no view as to the position which arises if the sub mortgage contains only a charge on the original mortgage debt but when it contains an assignment of that debt and of all the rights of the mortgagee the position appears to be free from difficulty
Relief can be given to the original mortgagor as against the original mortgagee under section 36 but such relief must not affect the rights of the assignee by way of sub mort gage
To take an imaginary case by way of illustration let it be assumed that the amount due on the original mortgage for principal and interest at the original rate is Rs 1000 and the sum due on the sub mortgage by assignment for principal and interest at the original rate is Rs 500
Let it further be assumed that if relief could be given and were given under section 36 as against both mortgagee and sub mortgagee the sums due to them respectively would be Rs 800 and Rs 400
By reason of sub section 5 the sub mortgagee s rights cannot be affected
He can therefore as assignee of the mortgage debt claim his full Rs 500 as against both mortgagor and original mortgagee
But if the court gives the mortgagor relief as against the original mortgagee the mortgagor will only be liable to pay to the original mortgagee Rs 300 the balance of the reduced debt after paying the sub mortgagee in full
As to contention b it is impossible to read subsec tion 5 of section 36 as referring only to an assignee 1 2 LR 76 IA 74
592 of a mortgage decree
The words and that he had not received the notice referred to in clause aof subsection 1 of section 28 make it plain that an assignee of a mortgage debt is within the sub section since section 28 sub section 1 is concerned only with assignment of debts pp 83 84
The sub mortgage here in question also contains an assignment of the debt due under the original mortgage debt and of the entire interest of the original mortgagee
After reciting their original mortgage the mortgagees proceed to state in the deed of sub mortgage We mortgage all that is at present due and that will in future become due to us the first second third and fourth parties on account of the said one lakh of rupees together with interest and the entire interest under the mortgage taken by us on the basis of the said Indenture in respect of five annas share of the said Niskar Mouza Mono harbahal and in respect of sixteen annas of the surface and underground rights in the said Mouza Marichkota and we make over the said Deed of Indenture to you
The decision referred to above is therefore directly in point and rules the present case
It was suggested that the said decision was inconsist ent with the earlier decisions of the same tribunal in Ram Kinkar Banerjee vs Satya Charan Srimani1 and Jagadamba Loan Co vs Raja Shiba Prasad Singh2
Stress was laid upon the expression all the rights of the mortgagee used by their Lordships in the passage quoted above and it was pointed out that in the earlier decisions they held that in India a legal interest remained in the mortgagor even when the mortgage was in the form of an English mortgage and that the interest taken by the mortgagee was not an absolute interest
This proposition it was said implied that in a sub mortgage all the rights of the original mortgagee are not assigned to the sub mortgagee and that the mortgagee still retains a legal 1 64 IA 50
2 68 IA 67
593 interest in the original mortgage
This is a rather super ficial view of the matter
In the earlier cases their Lordships were considering the quantum of interest trans ferred by a mortgagor to a mortgagee in a mortgage of leasehold interest for the purpose of determining whether or not there was privity of estate between the landlord and the mortgagee
If the mortgage could operate as an assign ment of the entire interest of the mortgagor in the lease the mortgagee would be liable by privity of estate for the burdens of the lease
If on the other hand it operated only as a partial assignment of the mortgagor s interest no such result would follow
It was in determining that issue that their Lordships held that no privity of estate arose in India because a legal interest remained in the mortgagor and the interest taken by the mortgagee was not an absolute interest
These cases had no bearing on the question which arose in Promode Kumar Roy vs Nikhil Bhusan Mukhopadhya 1 and arises in the present case as to whether a sub mortga gee becomes an assignee of the mortgage debt and of the mortgagee s right to recover the debt from the original mortgagor
The Act affords relief to certain classes of debtors by curtailing pro tanto the rights of the creditors subject to certain exceptions in regard to assignments of loans
In such a context the only relevant consideration could be whether the assignment is such as to establish a debtor and creditor relation between the assignee and the debtor so as to bring the case within the purview of the Act
If the sub mortgagee obtained by virtue of the sub mortgage the right to sue the original mortgagor for recov ery of the mortgage debt that would seem sufficient to make him an assignee within the meaning of the Act
It was from this point of view that the question as to the nature of the right transferred to a sub mortgagee under his sub mortgage was considered in Promode Kumar Roy vs Nikhil Bhusan Mukho padhya1 as it has to be considered in the present case and the reference to the sub mortgage containing an assign ment of all the rights 1 76 IA 74
594 of the mortgagee must in that context be understood with reference to the sufficiency of the right assigned to enable the sub mortgagee to sue the original mortgagor in his own right so as to bring the relevant provisions of the Act into play as between them
The reservation made by their Lordships in the case of a sub mortgage containing only a charge on the original mortgage is significant and supports this view
I do not consider therefore that there is any inconsistency between Promode Kumar Roy vs Nikhil Bhusan Mukhopadhya1 and the earlier decisions and even if there be any such inconsistency it has no relevance to the present case
In the result I agree that the appeal fails and should be dismissed with costs
Appeal dismissed


Summary:
Under the  the State Government referred to the Industrial Tribunal the question whether the nonemployment of certain workmen in the appel lant Company was justified and if not what was the relief to which they were entitled
The employer and the workmen filed their respective statements before the Tribunal and the workmen sought an amendment which the Tribunal allowed
The employer challenged the amendment by way of a writ petition before the High Court
The High Court took the view that the amendment could be assailed while challenging the award itself
The award was made and the employer assailed the same in a writ petition filed before the High Court
The High Court confined the relief to 131 casual employees who have worked for more than 240 days and set aside the award in respect of 50 others since they did not complete 240 days of service
Aggrieved both the employer and the workmen filed appeals before the Division Bench
The Division Bench found that until the amendment was made the workmen had a different claim from what was ultimately pressed before the Tribunal that there was great variation in the number of workmen for whom relief was claimed and came to the conclusion that it was not proved that the employer terminated the services of any of the casual workers
Thus the appeal of the employer was allowed and that of the workmen dismissed
Aggrieved the workmen have filed these appeals by Special Leave
14 Allowing the appeals in part this Court HELD 1
The stand taken by the Union that work had not been provided on 13101980 was wrong in view of the fact that a substantial number of casual workmen out of the 186 had really worked on the 13th and the two following days
The Union had mixed up its claim of confirmation with stop page of work leading to retrenchment
The Union obviously realised its mistake when the Company filed its Counter statement making a difinite assertion that bulk of the workmen had worked on 13th 14th and 15th of October 1980
The Tribunal did examine the question of confirmation on the basis of days of work put in by the workmen It found that 131 persons out of the 186 worked for 240 days
The number of 186 was reduced to 181 on account of duplication or death
The remaining 50 according to the Tribunal had not completed 240 days of work and were therefore not entitled to confirmation
18C D 2
While it is a fact that the workmen had made tall claims which they had failed to substantiate it was for the Tribunal and the High Court to appreciate the material on record and decide as to which part of the claim was tenable
The finding of the Tribunal that 13 1 workmen had put in more than 240 days of work was arrived at on the basis of some evidence it may be that better particulars and clear evidence should have been placed before the Tribunal
The Tribunal rightly gave the relief on the basis that Section 25F of the industrial Disputes Act had not been complied with
18E H 3
The claim of confirmation of 131 workmen as found by the Tribunal and upheld by the Single Judge of the High Court shall be restored
Relief of back wages in the facts and circumstances would however not be granted except to the extent it has been covered by two interim orders of this Court dated 1421986 and 551988
Such payments as have been made shall not be recovered
19B C 4
Quantum of evidence of appreciation thereof for recording findings of fact would not come within the purview of High Court s extraordinary jurisdiction under article 226 of the Constitution