Case: Ashalata Debi &amp; Others Vs. Jadu Nath Roy &amp; Others

2. One Romesh Chandra Acharji Choudhury (deceased) predecessor-in-interest of the Appellants borrowed on the 16th August 1918, Rs. 1,60,000 and Rs. 73,000 from the predecessors-in-interest of 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 in the Third Subordinate Judges Court Alipore. A preliminary mortgage decree for Rs. 4,21,851-1-6 was passed on the 4th April 1929 and a decree absolute for sale was prossed on the 13th Septembermortgaged 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 23 rd April 1935 for an aggregate amount of Rs. 2,35,200. These sales were duly confirmed and the auction purchasers took delivery of possession of different times of property on different dates between the 25th June 1933 and the 9th March 1936. The decree-holders obtained on the 13th December 1937 a personal decree under Order 34, Rule 6 of the Civil Procedure Code for the balance due to them, viz. Rs. 3,30,903. 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. 3,899 and delivery of possession of these properties was duly given to them on the 6th July 1940.3. Kahitish 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 10 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. 3,76,324-12-6. 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.4. 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 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 reliquished possession to the mortgagors of the collection papers of those properties.The sum of Rs. 3,76,374-12-6 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 with in the time prescribed the mortgages were entitled to get back posession of the said properties from the mortgagors and in that event the sum, of Rs. 2,39,099 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 34, 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 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.5. 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 casses 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 re-restoration of the properties. This appeal has been filed against that order of the High Court with certificate under Article 133(1)(a) of the Constitution.

Reasoning: 9. 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 S. 2(2) of the Civil Procedure Code. We cannot accept this reasoning. These applications were in truth and in substance applications for execution of the new decree 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 executions of the decree on default committed by the mortgagors and the applications made by 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 objections could be sustained on the ground that no appeals lay against these orders. Treating these applications therefore as applications for execution we see no substance in this contention of the Appellants.10. 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 regard to the payment of the revenue and the cess as also the second instalment under the new decree.11. 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.12. The High Court of Judicature at Calcutta was therefore rightly seized of the appeal and it had jurisdiction go 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 be 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.