Case: Oramba Sundari Dasi Vs. Ishwar Gopal Jieu &amp; Others

with the provisions of the Act. Obviously, this new decree is to be passed in favour of the original decree-holder and only the calculations upon which the old decree was based would be changed by substituting the statutory method of accounting in place of what rested upon the contract between the parties. Clause (b) and (c) contemplate cases where properties have been sold in execution of the original decree.5. If the purchaser is the decree-holder himself and he is in possession of the property when the decree is reopened, it is incumbent upon the court to order restoration of these properties to the judgment-debtor under Cl. (c). If, on the other hand, the properties had been acquired by strangers either by purchase at the execution sale or from the decree-holder purchaser, their interests would be protected if they have acquired these rights bona fide as contemplated by Cl. (b).Under Cl. (d), the Court has to order the payment of the decretal amount in such installments as it thinks proper, and Cl. (e) further imposes a duty on the Court to give a direction in such cases that if there is default in the payment of any one of the instalments, the properties restored to the judgment-debtor under Cl. (c) would be put back into the possession of the decree-holder.6. It is true that the object of restoring possession of the properties sold in execution of the decree to the judgment-debtor is to enable the latter to pay off the decretal dues, but it is to be remembered that the sale itself is not annulled, and in case of default in payment of any one of the instalments, the properties restored to the judgment-debtor under Cl. (c) would be put back into the possession of the decree-holder.7. It is true that the object of restoring possession of the properties sold in execution of the decree to the judgment-debtor is to enable the latter to pay off the decretal dues, but it is to be remembered that the sale itself is not annulled, and in case of default in payment of any of the instalments, the properties are returned to the decree-holder purchaser.8. We agree that if the purchaser is a mere benamidar for the decree-holder, Cl. (b), sub-s. (2) of the Section would not afford protection to him in any way. He could not be regarded as a person other than the decree-holder acquiring rights bona fide as contemplated by that clause. For the purpose of giving effect to Cls. (b) and (c), therefore, the Court has not only the right but is under a duty to make an enquiry as to whether the ostensible purchaser at the execution sale, or the person who purports to have acquired an interest therein under a subsequent transfer from the decree-holder purchaser, has bona fide acquired such rights within the meaning of clause (b).9. But we do not agree with the learned Judges of the High Court that in making a new decree under Cl. (a) of S. 36(2) and giving the judgment-debtor consequential relief under Cl. (c) of the sub-Section, the Court can at all enter into the question as to whether the decree-holder on record is himself a benamidar for another person in respect of the decree. Such enquiry, it seems to us, is altogether outside the purview of the different clauses of S. 36(2), Bengal Money-Lenders Act.10. These provisions do not recognise any other decree-holder than the one in whose favour the original decree was passed. It is between him and the judgment-debtor that the rights are to be adjusted in accordance with the provisions of the Act; to him would the instalments have to be paid under the new decree, and he alone would be compelled to restore the properties which he has purchased in execution proceedings. None but the decree-holder on record can give a valid discharge or record satisfaction of the decree.11. This being the position, it is altogether immaterial, in our opinion, that it was Aghore, the husband of the appellant, who really advanced the money upon which the decrees were obtained. We must treat the Charabortys and the Chakrabortys alone as the decree-holders and see to what extent the provisions of the Act could be applied against them in the circumstances of the present case. So far as the properties described in Schedules Kaa and Kha are concerned, it is not disputed that they were purchased by the decree-holders themselves.12. No price was actually paid by the decree-holders, but the sale proceeds were set off against the decretal dues. The decree-holders, therefore, must be deemed to be the purchasers of these properties within the meaning of Cl. (c) of S. 36(2); and as the subsequent conveyance of these properties, in favour of Oramba Sundari, the appellant, has been held by both the Courts below to be a fictitious transaction, we must hold that Oramba Sundari did not bona fide acquire any right which could be protected under Cl. (b) of S. 36(2).13. With regard to these properties, therefore, the order for restoration of possession made by both the Courts below should stand. As regards Ga Schedule properties, however, Oramba Sundari was the purchaser at the execution sale and whether or not the money for such purchase was paid by her husband becomes immaterial. This was not the property purchased by the decree holders and there is no proof of the decree-holders being in possession of the same either by themselves or through Oramba Sundari.14. In these circumstances, Cl. (c) of S. 36(2) cannot be attracted in favour of judgment debtors so far as this property is concerned and the possession of it must remain with the appellant. We, therefore, allow the appeal in part and set aside the order for restoration of possession made by the Court below in respect to the Ga Schedule property. The rest of the decision of the High Court will stand. We make no order as to costs of these appeals.15.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]If the purchaser is the decree-holder himself and he is in possession of the property when the decree is reopened, it is incumbent upon the court to order restoration of these properties to the judgment-debtor under Cl. (c). If, on the other hand, the properties had been acquired by strangers either by purchase at the execution sale or from the decree-holder purchaser, their interests would be protected if they have acquired these rights bona fide as contemplated by Cl.Cl. (d), the Court has to order the payment of the decretal amount in such installments as it thinks proper, and Cl. (e) further imposes a duty on the Court to give a direction in such cases that if there is default in the payment of any one of the instalments, the properties restored to the judgment-debtor under Cl. (c) would be put back into the possession of theis true that the object of restoring possession of the properties sold in execution of the decree to the judgment-debtor is to enable the latter to pay off the decretal dues, but it is to be remembered that the sale itself is not annulled, and in case of default in payment of any one of the instalments, the properties restored to the judgment-debtor under Cl. (c) would be put back into the possession of theis true that the object of restoring possession of the properties sold in execution of the decree to the judgment-debtor is to enable the latter to pay off the decretal dues, but it is to be remembered that the sale itself is not annulled, and in case of default in payment of any of the instalments, the properties are returned to the decree-holderagree that if the purchaser is a mere benamidar for the decree-holder, Cl. (b), sub-s. (2) of the Section would not afford protection to him in any way. He could not be regarded as a person other than the decree-holder acquiring rights bona fide as contemplated by that clause. For the purpose of giving effect to Cls. (b) and (c), therefore, the Court has not only the right but is under a duty to make an enquiry as to whether the ostensible purchaser at the execution sale, or the person who purports to have acquired an interest therein under a subsequent transfer from the decree-holder purchaser, has bona fide acquired such rights within the meaning of clausewe do not agree with the learned Judges of the High Court that in making a new decree under Cl. (a) of S. 36(2) and giving the judgment-debtor consequential relief under Cl. (c) of the sub-Section, the Court can at all enter into the question as to whether the decree-holder on record is himself a benamidar for another person in respect of the decree. Such enquiry, it seems to us, is altogether outside the purview of the different clauses of S. 36(2), Bengal Money-Lendersprovisions do not recognise any other decree-holder than the one in whose favour the original decree was passed. It is between him and the judgment-debtor that the rights are to be adjusted in accordance with the provisions of the Act; to him would the instalments have to be paid under the new decree, and he alone would be compelled to restore the properties which he has purchased in execution proceedings. None but the decree-holder on record can give a valid discharge or record satisfaction of thebeing the position, it is altogether immaterial, in our opinion, that it was Aghore, the husband of the appellant, who really advanced the money upon which the decrees were obtained. We must treat the Charabortys and the Chakrabortys alone as the decree-holders and see to what extent the provisions of the Act could be applied against them in the circumstances of the present case. So far as the properties described in Schedules Kaa and Kha are concerned, it is not disputed that they were purchased by the decree-holdersprice was actually paid by the decree-holders, but the sale proceeds were set off against the decretal dues. The decree-holders, therefore, must be deemed to be the purchasers of these properties within the meaning of Cl. (c) of S. 36(2); and as the subsequent conveyance of these properties, in favour of Oramba Sundari, the appellant, has been held by both the Courts below to be a fictitious transaction, we must hold that Oramba Sundari did not bona fide acquire any right which could be protected under Cl. (b) of S.regard to these properties, therefore, the order for restoration of possession made by both the Courts below should stand. As regards Ga Schedule properties, however, Oramba Sundari was the purchaser at the execution sale and whether or not the money for such purchase was paid by her husband becomes immaterial. This was not the property purchased by the decree holders and there is no proof of the decree-holders being in possession of the same either by themselves or through Orambathese circumstances, Cl. (c) of S. 36(2) cannot be attracted in favour of judgment debtors so far as this property is concerned and the possession of it must remain with the appellant. We, therefore, allow the appeal in part and set aside the order for restoration of possession made by the Court below in respect to the Ga Schedule property. The rest of the decision of the High Court will stand.