Case: Haridas Mondal Vs. Anath Nath Mittra

as may be considered appropriate. The court is invested with the power of reopening transactions including taking of accounts between the parties, of releasing the borrower of all liability in excess of the limits specified in cls. (1) and (2) of S. 30 and of setting aside either wholly or in part or of revising or altering any security given or agreement made in respect of any loan. Exercise of these powers is subject to the provisos which are not material for the purposes of this appeal. By sub-sec. (2), the court reopening a decree is prohibited from doing anything which affects the rights acquired bona fide by any persons other than the decree-holder in consequence of the execution of the reopened decree; but is enjoined to order the restoration to the judgment-debtor of such property, if any, of the judgment-debtor acquired by the decree-holder in consequence of the execution of the reopened decree as may be in the possession of the decree-holder on the date on which the decree was reopened and also to order the judgment-debtor to pay to the decree-holder in such number of instalments as it may think fit, the whole amount of the new decree passed under cl. (a). The court is further enjoined to direct that in default of payment of any instalments, the decree-holder shall be put into possession of the property which has been restored to the judgment-debtor and that the amount for which the decree-holder purchased such property in execution of the reopened decree shall be set off against so much of the amount of the new decree as remained unsatisfied. Sub-section (6) provides that notwithstanding anything contained in any law for the time being in force, the court which, in a suit to which the Act applies, passed a decree which was not fully satisfied by the first day of January 1939, may exercise the powers conferred by sub-secs. (1) and (2) in any proceeding in execution of such decree. Section 36, sub-sec. (1). contemplates the institution of a suit by a borrower for relief under that section and the court is thereby invested with the power of reopening decrees already passed.3. Mittra in the year 1941 filed the suit under S. 36 of the Act for reopening the personal decree passed under O. 34, R. 6 of the Civil Procedure Code. In schedule "A" to the plaint, he set out the principal amount due under the mortgage, the interest at the rate of 8 per cent due thereon from the date of the mortgage till the date of the suit, costs of the suit, and after giving credit for the price realised by sale of the properties, he submitted that Mondal was entitled to recover only Rs. 66-13-2 and that Mondal should be declared entitled to that amount in twenty annual instalments. By a suit under S. 36, Mittra undoubtedly was entitled to reopen the preliminary decree, decree absolute for sale and also the personal decree; but in the first suit, he gave up his right to reopen the preliminary decree and the decree absolute for sale, and was content to obtain an order that the personal decree alone be reopened. In the execution under the mortgage decree one parcel of land was purchased by Mittras wife and it is presumably on account of this circumstance that Mittra was unwilling to have the preliminary decree reopened. The District Judge, Midnapore, who heard the appeal against the order passed by the 2nd court of the Subordinate Judge in the first suit under S. 36 of the Act observed:"It is admitted before me by the learned pleader for the appellant that the reopening of the entire transaction will not be to the benefit of the appellant and the latter, therefore, does not want this to be done. The only relief he claims is that the new decree passed by the learned Subordinate Judge for Rs. 1,431-15-0 shall be reduced to Rs. 66-13-2 as mentioned in his application under S. 36 of the Act."4. In the first suit under S. 36 filed by Mittra, the claim to reopen the preliminary decree and the decree absolute was deliberately abandoned and he obtained relief expressly on the footing that he did not desire that those decrees should be reopened. Is it thereafter open to Mittra to file another suit for obtaining relief under S. 36 by reopening the preliminary decree and the decree absolute?In our judgment, S. 36 contemplates filing of one suit and not successive suits for reopening transaction including decrees and obtaining relief under the Act. If in a suit filed for that purpose, a borrower does not obtain relief which he has asked for or abandons his right to relief, in our judgment it will not thereafter be open to him to institute a second suit for relief which could have been but was not claimed in the earlier suit.5. The plea that in the previous suit it was not open to Mittra to make a claim for reopening the preliminary decree and the decree absolute is without substance. By sub-sec. (6) of S. 36, the right to grant relief in proceedings in execution of as decree already passed but which is not satisfied is vested in the court passing the decree and the first suit under S. 36 was filed in the court which had originally passed the mortgagee decree. The claim to reopen the decrees preliminary and final was abandoned not because the court was incompetent to grant relief but because Mittra did not at that stage desire to reopen those decrees.We are unable to agree with the High Court that to a suit under S. 36 of the Act the rule contained in O. 2. R. 2 of the Code of Civil Procedure does not apply. We are also of the view that the right to claim relief which would have been but has not been asked for in the previous suit must be regarded as res judicata.I

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

Explanation:
1[ds]In our judgment, S. 36 contemplates filing of one suit and not successive suits for reopening transaction including decrees and obtaining relief under the Act. If in a suit filed for that purpose, a borrower does not obtain relief which he has asked for or abandons his right to relief, in our judgment it will not thereafter be open to him to institute a second suit for relief which could have been but was not claimed in the earlier suit.5. The plea that in the previous suit it was not open to Mittra to make a claim for reopening the preliminary decree and the decree absolute is without substance. By sub-sec. (6) of S. 36, the right to grant relief in proceedings in execution of as decree already passed but which is not satisfied is vested in the court passing the decree and the first suit under S. 36 was filed in the court which had originally passed the mortgagee decree. The claim to reopen the decrees preliminary and final was abandoned not because the court was incompetent to grant relief but because Mittra did not at that stage desire to reopen those decrees.We are unable to agree with the High Court that to a suit under S. 36 of the Act the rule contained in O. 2. R. 2 of theCode of Civil Procedure does not apply. We are also of the view that the right to claim relief which would have been but has not been asked for in the previous suit must be regarded as res judicata.