Case: Haridas Mondal Vs. Anath Nath Mittra

1. To secure repayment of Rs. 2,500/- Anath Nath Mittra-hereinafter referred to as Mittra-mortgaged four parcels of land to Haridas Mondal-hereinafter referred to as Mondal-by deed dated April 25, 1930. Mondal filed suit No. 18 of 1937 on June 11, 1937, for enforcement of the mortgage in the Court of the 2nd Subordinate Judge, Midnapore, and obtained a preliminary mortgagee decree for Rs. 5,000/- and interest and costs, This decree was made absolute and in execution of the decree, the mortgaged property was sold for Rs. 4,160/- and an amount of Rs. 2,176-6-6 out of the decretal amount remained due and payable under the mortgage decree. Out of the four parcels of land sold, three were purchased by Mondal and the remaining was purchased by Mittras wife. Mondal then applied for a personal decree under O. 34, R. 6 of the Civil Procedure Code and obtained on September 7, 1940, a decree for payment of Rs. 2,338-15-0 against Mittra. Mondal then applied for executing the personal decree by Misc. Execution Case No. 11 of 1941. In the meanwhile, the Bengal Legislature enactedthe Bengal Money-lenders Act, 1940, which enabled the courts in certain circumstances to reopen decrees already passed. Availing himself of this Act, Mitra filed a suit under S. 36 of the Bengal Money-lenders Act for an order for reopening the personal decree. By order dated August 16, 1941, the Subordinate Judge, Midnapore decreed the suit and directed that a new decree for Rs. 1,431-15-0 be drawn up and that the amount due under the personal decree be paid in three annual instalments. Against this decree, an appeal was preferred to the District Court. Midnapore. The District Judge dismissed the appeal and allowed the cross-objections filed by Mondal. In Second Appeal No. 1442 of 1942, the High Court of Judicature at Calcutta set aside the decree of the District Judge and restored the decree of the Subordinate Judge, 2nd Court, Midnapore. Mittra did not pay the amount as directed under the new decree and Mondal applied for executing the decree. Mittra then filed another suit under S. 36 of the Bengal Money-lenders Act in the 2nd Court of the Subordinate Judge, Midnapore, for reopening the decrees preliminary and final passed in the mortgage suit. The Subordinate Judge dismissed this suit as it was, in his view, barred as res judicata. In appeal to the District Court, the decree was confirmed. But the High Court in Second Appeal ordered that the preliminary and final decrees be reopened and the case be remanded to the trial court for passing a fresh preliminary decree. Against the said decree of the High Court, this appeal is filed with special leave.

Reasoning:
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.