Civil Appeal No 69 of 1952
Appeal from the Judgment and Decree dated the 27th April 1950 of the High Court of Judicature at Calcutta Sen  Chunder 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 24Parganas 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 BAAGWATI J
This is an appeal against the judgment and decree of the High Court of Judicature at Calcutta reversing the order of the Third Subordinate Judge Alipore dismissing the respondents applications for re restoration of certain immovable properties
One Romesh Chandra Acharji Choudhury deceased predecessor in interest of the appellants borrowed on the 16th August 1918 Rs 160000 and Rs 73000 from the predecessors in interest of the respondents under two deeds of mortgage
There being default in payment of the mortgage amounts a suit to realise the mortgage securities was filed on the 10th March 1926 152 in the Third Subordinate Judge s Court Alipore
A preliminary mortgage decree for Rs 4218511 6 was passed on the 4th April 1929 and a 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 235200
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 aecree holders obtained on the 13th December 1937 a personal decree under Order XXXIV rule 6 of the Civil Procedure Code for the balance due to them viz Rs 330903
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 3899 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 appellant No 4 sons of the mortgagor filed on the 9th December 1940 a petition under section 36 of the Bengal Money Lenders Act Act X of 1940 for reopening 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 a new decree for a sum of Rs 376324 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 cross objections were filed by the said Kshitish Chandra Acharji Choudhury and appellant 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 153 passed a 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 those 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 376324 12 6 was declared to be due by the mortgagors 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 the 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 mortgagors were entitled to get back possession of the said properties from the mortgagors and in that event the sum of Rs 239099 at which the mortgagees had purchased those properties 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 a 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 20 154 the mortgagors were at liberty to set off the amount that might be decreed in their favour for mesne profits towards the instalment that fell due in the year in which the amount was declared by the Court below and the next succeeding years till the said amount was wiped off
Possession was delivered to the mortgagors on the 5th October 1944
The delivery 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 therefore made applications in the Court of the Third Subordinate 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 defaults were pressed one in regard to the payment of the second instalment which was due on the 28th March 1947 and the other in regard to the payment of the revenue and the cesses of the Noakhali 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 Judicature at Calcutta
The appeal was allowed on the 27th April 1950
The High Court held that a default had been committed by the mortgagors and ordered rerestoration of the properties
This appeal has been filed against that order of the High Court with certificate under article 1331a of the Constitution
Shri section 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 155 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 rerestoration 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 42 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 respect 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 41 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 42 did not save the appeal which had been filed by the mortgagees after the 15th August 1947
We cannot accept this contention of the appellant
Paragraph 42 provided for appeals or applications 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 Court should be read as meaning if the proceedings could have been 156 instituted in that Court
 This certainly could not be the meaning because by reason of the transfer of the territories no proceedings in respect of the properties which had gone to Pakistan  could ever have been maintained after the 15th August 1947 in the Courts concerned
The only construction which could be put upon this provision was that the Court having appellate or revisional jurisdiction over that Court would have such jurisdiction as if the proceedings had been instituted in that Court after the 15th August 1947
For the purpose of the appellate or the revisional jurisdiction that Court had to be treated as the Court in which the proceedings could and should have been instituted and it goes without saying that if the pro ceedings could be treated as having been properly instituted in that Court the only Court to which the appeal or the application for revision could lie was the Court which then had appellate or revisional jurisdiction over that Court
In the case before us no proceedings could have been instituted in the Third Subordinate Judge s Court at Alipore in respect of the properties which had gone to East Pakistan after the 15th August 1947
But by reason of the fact that these proceedings were pending in that Court on the 15th August 1947 the High Court of Calcutta which had appellate or revisional jurisdiction over that Court was prescribed to be the Court in which the appeal or the application for revision in respect of such procedings would lie because that Court that is the Third Subordinate Judge s Court at Alipore was treated as the Court in which such proceedings could and should have been instituted after the 15th August 1947
Learned counsel for the respondents drew our attention to the case of Tirlok Nath vs Moti Ram and Others1
In that case a suit for possession of land at place X was filed in Court at B in 1943
On the 15th August 1947 the suit was pending before the Court at B which dismissed the suit in 1948
An appeal from the decision was filed in the East Punjab High Court as the place B was included in the East Punjab
On 1 AIR 1050 East Punjab I49 157 objection regarding jurisdiction of the High Court being taken on the around that the land in suit was at A now included in Pakistan the HighCourt held that the suit being pending at place B 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 42 of the Indian Independence 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 a special remedy given under a special law and held that the rules of the Code of Civil Procedure applied and an appeal lay against the orders because they were decrees within the definition of section 22 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 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 clear that the orders passed on such applications for execution were appealable and no objection could be sustained on the ground that no appeals law 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 objection 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 clear on the facts that default was committed by the mortgagors both in 158 regard to the payment of the revenue and the cess as also the second instalment under the new decree
The contention which was therefore urged on behalf of the appellants that there was no default committed by the mortgagors also could not be sustained
The High Court of Judicature at Calcutta was therefore 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 a mere rehearing the appellate Court was entitled to review the judgment of the trial Judge and declare that 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 jurisdiction he may be able to do so but this difficulty could not be a 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


Summary:
42 of the Indian Independence Legal Proceedings Order 1947 runs 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   2Any appeal or application for revision in respect 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  
An application by the decree holder for re restoration of properties by reason of the default made by the judgment debtor after a new decree had been passed under section 36 of the Bengal Money Lenders Act 1940 was pending in the Court of the Subordinate Judge Alipore on 15th August 1947 when the bulk of the properties which were the subject matter of the new decree went to East Pakistan as being situated there
The application was saved by the provisions of para
41 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 decreebolder was not saved by para
42 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 construction that could be put upon this provision was that the Court having appellate or revisional jurisdiction over that Court would 151 have such jurisdiction as if the proceedings had been instituted in that Court after the 15th August 1947
An application by the decree holder was in substance an application 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 application in the suit for a special remedy given under a special law and that the rules of Civil Procedure Code applied and an appeal lay against such orders because they were deerees within the definition of section 22 of the Civil Procedure Code was not sustainable and could not be accepted
Tirlok Nath vs Moti Ram and Others AIR 1950 East Punjab 149 referred to