Case: Kumar Pashupatinath Malia &amp; Another Vs. Deba Prosanna Mukherjee

2. 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 10-8-1908, the said receiver with the permission of the Court which had appointed him as receiver granted two mining leases, each for 999 years-one in respect of 5/16 share of the Malias in Mouza Monohar Bahal and the other in respect of 230bighasin village March Kota-to a firm then carrying on business under the name and style of Laik Banerjee and 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. l00,000 advanced by that firm. The Malias joined the receiver in executing the aforesaid leases and the mortgage. As a result of these transactions the firm of Laik Banerjee and 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 mortgagee under the mortgage of 10-8-1908.On 31-3-1999, Deva Prasanna filed suit No. 78 of 1922 for enforcing the mortgage of 1908. Preliminary decree was passed in the last mentioned suit on 31-7-1928, and a final decree for sale was made on 26-2-1929. In execution of this final decree, the mortgaged properties were sold at a court sale and were purchased by Deva Prasanna at and for Rs. 59,000. This sale was confirmed by the Court on 30-6-1931. A large sum remaining still due to Deva Prasanna, be applied for, and on 30-10-1935, obtained a personal decree to Rs.1,17,179.0-6 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 30-1-1937, a petition (Ex. 2) was filed in the executing Court stating as followsjudgment 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 struck off for the present on keeping the attachment in force, the decree-holder 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 and certified copy of the order made on that date by the executing Court on the above petition is forthcoming but the parties have definitely agreed that the order is substantially and correctly entered in column 20 of EX. F which is a certified copy of extract from the Register of applications for executions of decrees relating to execution case No. 118 ofThe 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 isadmits receipt of Rs. 76/14/. as costs of this case from the judgment-debtor. The execution case is dismissed for non-prosecution-the attachment already effected in this caseentry under column 11 of that very exhibit reads as followscase automatically drops as the execution case is dismissed. It is, therefore, rejected without any sort of adjudication.30-1-1937.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 Malik 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. 90,000 within two years from that date. Senapati Mahal originally belonged to the Raja but had been transferred by him to his two sons. A creditor, however, had filed a suit under S. 53, T. P. Act challenging that transfer and had actually got a decree declaring that transfer as fraudulent and void as against the creditors of the Raja. An appeal was filed by the Kumars which was pending at the date of the Kobala of 4-1-1931 and, in the circumstances, it was considered safer to join the Raja in the last mentioned Kobala in favour of Deva Prasanna.7. On 9-6-1939 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. l18 of 1936." The relevant portions of this petition were as followsthe above execution case was disposed of on 30-1-1937 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 4-1-1939......... -----So there is no longer any need of the said attachment remaining subsisting.It is, therefore, prayed that the attachment may bethe 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 Ex. 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 pleader for the decree holder and pleader of the judgement-debtor according to the adjustment mentioned but not detailed in this petition of today. Make necessary notes and send this petition to the District Record Room."In the remarks Col. No, 22 in Ex. F the following entry was madesaid attachment is cancelled and the decree in question is recorded as adjusted as stated by learned pleader for the D. H and the pleader of the judgmentdebtor according to the adjustment mentioned but not detailed in this petition of to day. Dated 2-6-1939.The Raja died in August 1940 leaving the two appellants as his sons and legal representatives. The Bengal Money Lenders Act, 1940 (Bengal Act x of 1940) hereinafter called the Act came into fores on 1-9-1940. On 2-1-1941 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 S. 36 of the Act praying for reopening the transactions and taking accounts and for release from all liabilities 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 S. 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 founded on merits as well as on legal pleas in bar. On 8- 5-1941 the Subordinate Judge settled the issues and fixed 9-6-1941 "for a preliminary hearing 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 4-9-1941 and by his judgment delivered on 8-9-l94l the learned Subordinate Judge dismissed the suit on issue N0. 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 (R. C. Mitter and K. C. Chunder JJ.) did not accept all the reasoning 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 N0. 78 of 1922 could not be reopened, as they were not passed in "a suit to which this Act applies" and consequently dismissed the appeal. The appellants have now come up on appeal before us after having obtained a certificate from the High Court under S. 110, Civil P. C.

Reasoning: It is quite obvious that the Court made an order of the third kind mentioned above. The three forms of order permissible under R. 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 R. 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 Court intended to make a final order of dismissal. Again, the heading of column 20 in Ex. 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 decisively, that the execution proceeding was finally disposed of by the order. The following endorsement appears on the petition (Ex. 2 (a), dated 9-6-1939learned pleaders for the parties. They jointly ask me to cancel the attachment (existing by special order) in Money Ex. 118 of 1936 though that case wasendorsement also clearly shows that the Court itself understood that the order that it made on 30-1-1937 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 30-1-1937 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 amendment made by the Calcutta High Court in R.is no substance in this argument. Ordinarily, an attachment is supported by an execution case and if the execution case is simply dismissed the attachment must fall with it. But R. 57, as amended, expressly empowers 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, hang in the air. It rests upon the solid foundation of a special order which R. 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 O. 38, R. 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 judgment-debtor 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 application for the execution of the decree at any time by the decree holder there is, nevertheless, an execution proceeding pending merely because the attachment continues. Here also the attachment subsists and rests only upon the terms of O. 38, R. 11 and without any proceeding. Such attachment cannot be called a proceeding in execution, for none was even initiated after the decree was passed. In my judgment, the order of 30-1-1931, was a final order which brought the execution Case No. 118 of 1936 to an end and the attachment continued, not because there was a pending execution proceeding but because a special order was made under O. 21, R. 51 as amended by the High Court.In substance, it was nothing but a certification by the decree-holder of the satisfaction of the decree. The mere fact that the document was in the form of a petition could not convert which 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 decree-holder 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 (Ex. 2a) was not an application such as would initiate a proceeding in execution for any of the purposes mentioned in cls. (a) or (b) or (c) of S. 2 (22) of the Act.