Champalal Sethia vs Sushil Kumar Chakravarty

P.N. Mookerjee, J.—This is the creditor''s appeal, arising out of a proceeding u/s 38 of the Bengal Money-lenders Act. The disputed transaction (Ext. 1) was a usufructuary mortgage, purporting to be for a term of 22 (twenty-two) years from 1349 B.S. to 1370 B.S. On May 22, 1954, the mortgagor made an application under the above section for "taking accounts and for declaring the amount due to the lender". The application was opposed by the creditor who is the Appellant before us, but it was ultimately allowed by the learned Subordinate Judge who directed that accounts be taken for the purpose of finding out and declaring the amount due to the creditor. The learned Subordinate Judge also directed that, for the purpose of taking accounts a commissioner be appointed. Against this order the present appeal was filed by the creditor.

The only point which has been urged in support of the appeal is that Section 38 has no application to usufructuary mortgages particularly when they are for fixed terms as in the present case. That was also the point, raised before the learned Subordinate Judge, and it was rejected by him on the ground that Section 38 is general in its terms and, the relationship between the parties under the usufructuary mortgage (Ext. 1) being one of borrower and lender u/s 2(2) and Section 2(9) of the Bengal Money-lenders Act and the transaction being a loan within the meaning of Section 2(11) of the said Act (vide Sri Ram Charan Sinha Vs. Gopi Nath, , the section (Section 38) has undoubted application.

In view of the language of the section untrammelled by any other consideration,-and, as a matter of fact, no other consideration has actually been placed before us,--we do not think that any other view should be taken as to the rights of the parties on the disputed question. On the merits, therefore, the decision of the learned Subordinate Judge ought to stand.

It is only necessary to observe that we are not expressing any opinion on the rights of the parties following from or in consequence of the declaration, if any, u/s 38. We do, however, decide that the mere fact that the mortgage is for a fixed period does not prevent the mortgagor from having a declaration u/s 38, if he is otherwise entitled to it. "What effect this declaration may have upon the ultimate rights of the parties is not a matter, arising at the present stage, and we are not expressing any opinion on the same. That may require consideration of the terms and effect of the bond on the rights of the parties in the light of the relevant law, particularly the Transfer of Property Act and the other provisions of the Bengal Money-lenders Act, which consideration does not seem to be strictly necessary or very appropriate at this stage and we prefer to leave it out of account on that ground. What we do decide is that, having regard to its language, Section 38 will apply to all transactions of loan under the Act between parties, standing in the relationship of borrower and lender, so as to entitle the borrower to apply for relief under the section. That is enough for our present purpose and, on that view, we affirm the decision of the learned Subordinate Judge.

Before parting with this case, we ought to point out that a preliminary objection was taken before us as to the maintainability of the appeal. In the view which we have taken on the merits, it is not necessary to express any opinion on this preliminary question of competency or incompetency of the appeal. But as certain decisions were placed before us in support of the right of appeal in such cases, we would just express our views on the same.

In support of his contention that the appeal is competent, although there has as yet been no declaration of the amount, if any, due u/s 38, so as to bring the case under Sub-section (3) of that section, Mr. Sen relied on two Bench decisions of this Court, namely, in the cases of Satish Chandra Nag v. Riyasat Hossain ILR [1949] 1 Cal. 487 and Biraj Kumar Banerjee and Ors. v. Indu Bala Gupta (1955) 60 C.W.N. 31. The first case cited appears to be more or less a direct authority on the point in favour of Mr. Sen and the second also which follows the first and agrees with the said decision and its principle considerably aids his submission. The decisions cited are undoubtedly by Judges of this Court who command the highest respect but it seems to us that one important and fundamental aspect of the matter did not receive full or adequate consideration at their hands. It is undoubtedly true that, when a matter is before the Civil Court, even though arising under a special statute, the right of appeal is to be governed by the CPC and the decision would be appealable if it comes under the relevant provisions of the Code, unless there is something, express or necessarily implied, to the contrary in that particular statute. That principle has been stated, accepted and affirmed in both the above decisions. If, however, that be the ruling principle, in view of the fact that the statute, in this particular case, provides for a right of appeal only against the declaration, if any, made under the section (Section 38) [vide Sub-section (3)]-and that view has been accepted in both the above decisions-and thus, prima facie at least, excludes, by necessary implication, the right of appeal from a decision of any other type, that is, not coming under the head of declaration as aforesaid, the appeal in the present case would appear to be incompetent. This aspect of the matter does not appear to have received due consideration in either of the two cases cited above.

We do not think also that the Federal Court decision in the case of Kumar Pramatha Nath Roy v. Kumar Sanat Kumar Mukherjee ILR [1949] 2 Cal. 496, lays down anything to the contrary. There, before the Federal Court, the point was, whether from the appellate decision of this Court u/s 38 a further appeal lay to the Federal Court and their Lordships affirmed that right. The decision was based on the principle which we have stated above, namely, that appeal would lie if sanctioned by the Code provided there is nothing to the contrary, express or implied, in the special or particular statute So far as the further appeal to the Federal Court was concerned there was no provision in the statute either way and, in the absence of exclusion, express or implied, the right of appeal under Sections 109 and 110 of the Code was found available. Their Lordships also appear no doubt, to have affirmed "a wider right of appeal from ''every decision in appeal'' " but there is nothing in their judgment, from which it may even be inferred that any decision under the section (Section 38) other than a declaration, as contemplated therein, would be appealable in law in the first instance. It is, on the other hand, clear from their Lordships'' observations that they proceeded on the footing that, in proceedings under that section (Section 38) only the declaration, if any, made thereunder, would be appealable in the first instance and that also only when a decree, passed in similar circumstances, would be appealable, that is, appealable under the Code. This would not obviously support the decisions in Satish Chandra Nag v. Riyasat Hossain (supra) and Biraj Kumar Banerjee and Ors. v. Indu Bala Gupta (supra) which would also be inconsistent with the decision of this Court, reported in Hub Lal Shaw v. Prem Raj holla (1952) 56 C.W.N. 381 properly and rationally understood.

If, therefore, it had been necessary to consider the above point of maintainability of the appeal in this particular case we would have probably been obliged to refer the question to a Full Bench. In view of our decision, however, that the appeal fails on the merits, it is not necessary to examine the matter further or to express any opinion on the Respondent''s preliminary objection.

The appeal, accordingly, fails and it is dismissed, but, in the circumstances of this case, we would direct the parties to bear their own costs in this Court.

In view of the order, passed in the appeal, no order is necessary on the alternative application.

Sarkar, J.

I agree.