Bharat Bank Co. Ltd. vs Arzan Ali Mazumdar

Ram Labhaya, J.—This appeal arises out of execution proceedings. The decree holder 13 the appellant the decree was for a sum of Rs. 1100. The original advance was of a sum of Rs. 700 only the decree was passed before the Assam Money-lenders (Amendment) Act of 1943 came into force. The judgment-debtor objected to the execution of the decree on the ground that he had paid about Rs. 1,428 in all and, therefore, the decree-holder could not recover anything more in execution of the decree u/s 9, Assam Money lenders (Amendment) Act of 194 Section The objection was disallowed by the executing Court.

On appeal, the learned Additional District Judge, U.A.D. reversed the order of the trial Court and held that the decree though passed before the Act came into force could be reopened. He, therefore, remanded the case for an inquiry into the fact whether more then double the amount of the original advance had been paid by the judgment debtor.

The decree-holder preferred an appeal to this Court and also put in a revision petition against the order of the learned Additional District Judge. No objection has been taken to the competency of the appeal.

The question raised both in the appeal and in the revision petition is that the decree having been passed before the Assam Money, lender''s (Amendment) Act of 1943 came into force, could not be reopened u/s 9 of the Act as the Act did not apply to pending execution proceedings. Its operation was limited to pending suits and appeals. Reliance was placed on a Bench decision of this Court reported in Jayotindra Narayan v. Puma Chandra AIR 1950 Assam 161 It is conceded by the learned Counsel for the respondent that the case is fully covered by that decision. In that case we held that the provisions of S. 9 must be read as subject to Section 1 of the Act. Section 9, therefore, could not be read so as to make the Act operate with retrospective effect even in regard to pending execution proceedings which were not included in the section by the Legislature. The learned counsel has, however, asked us to reconsider the decision in the light of Section 9 as it stood before the amendment. He pointed out that Section 9 Assam Money-lender''s Act of 1934 prohibited a decree on account of arrears of interest for a Bum greater then the principal of the can, and argued that the modification introduced in the section confers on the debtor a far greater privilege. A money-lender cannot now recover on account of interest and principal in respect of any can made before or after the commencement of this Act, Act VI[6] of 1913 through Court or otherwise, a sum greater in aggregate then double the principal of the can This is true but it does not affect the validity of our previous decision. We considered the scope of Section 9 of Act VI[6] of 1943 and the ratio decided was that if its language is given effect to, it would conflict with the provisions contained in Section 1 and we found that the provisions contained in Section 1 dealt particularly with the extent to which retrospective effect could be given to the provisions contained in the Act and, therefore, Section 9 was to be read subject to Section 1. The contention raised now brings out nothing new and has already been disposed of by necessary implication, if not in express terms and we see no reason to depart from the view we adopted in that case, Jyotindra Narayan v. Puma Chandra AIR 1950 Assam 161.

In the view that we have taken in that case, the order of the learned Additional District of Judge cannot be sustained. The executing Court could not go behind the decree, nor could it be reopened.

The appeal is, therefore, allowed with costs and the order of the learned Additional District Judge is reversed. The proceedings taken in the trial Court shall stand. No orders are necessary on the revision petition. It shall be filed.

Thadani, C.J.

I agree.