Murali Panda vs Kholli Naiko and Others

Reuben, J.—s appeal arises out of art execution proceeding in which the respondents-decree-holders are seeking to execute a mortgage decree for sale for the amount of Rs. 12,690-1-9. The preliminary decree was passed on 15-8-1927, and was confirmed in appeal on 2-8-1935. The final decree was passed on 4-12-1936. The execution petition was filed on 20-4-1938. On 189-1939, the appellant-judgment-debtor 2 filed an application under Sections 11 and 13, Orissa Money-lenders Act,1939 (Act [3] III of 1939), asking for instalments and for scaling down the decree. The application was contested by the decree-holders respondents on the ground that the preliminary decree having been passed before 1-4-1936, the provisions of the Orissa Money-lenders Act relating to the scaling down of the decrees were not applicable. This contention was rejected by the Subordinate Judge on 6-3-1940, by his order of that date which also directed the parties to file their respective statements for the scaling down of the decree by 12-3-1940, and allowed the applicants judgment-debtors three months time to pay the entire decretal amount as found after scaling down. The statements filed by the parties were both found incorrect, and the decree was finally sealed down in accordance with an account prepared in the office of the Subordinate Judge to an amount of Rs. 4463-1-3, carrying interest at 6 per cent. per annum from 15.2-1928, until realisation. The order to this effect was passed on 20-4-1940. At this hearing the appellant pressed for the application of the damdupat rule contained in Section 10, Orissa Money-lenders Act, contending that under this section the total interest up to the date of the final decree must not exceed the principal amount of the loan. The Subordinate Judge rejected this contention, holding that under the terms of the section, the total interest up to the date of the institution of the suit shall not exceed the principal, and as, according to his calculation, the interest up to this date was less than the principal, he did not apply the provisions of Section 10. The present appeal has been filed by the appellant against this order.

In view of the decision of a Full Bench of this Court in Dandapani Gowda Vs. Bishun Das, that Section 10, Orissa Money-lenders Act, does not apply to execution proceedings, the appeal is not pressed. The matter does not end here, however, because a cross-objection has been filed by the respondents-decree-holders raising the question of the applicability of Section 11, Orissa Money-lenders Act.

On this point, also, the matter is concluded by a decision of a Bench of this Court in Chakradhar Mahapatra v. Sailendra Narayan Bhanj Deo (43) 9 Cut. L.T. 54.It is contended by Mr. Chatterji for the appellant, however, that the cross-objection itself is not maintainable, because the point raised in it was decided against the cross-objectors on 6-3-1940, and, no appeal having been filed against that order, it has now become final and conclusive against the cross objectors. The question which arises is whether an appeal lay against the order passed by the Subordinate Judge on 6-3-1940. The Money-lenders Act contains no provision for the filing of an appeal, and an appeal lies only under the provisions of the CPC relating to appeals against decrees. Under Clause (2) of Section 2 of that Code,:

decree'' means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit.

and includes "the determination of any question within Section 47." We have, therefore, to see whether on 6-3-1940, any question within Section 47 was determined. Section 47 is concerned with questions arising between parties to the suit, in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree. In the present case, the decree-holders were attempting to execute the decree for the full amount, which at the time of the filing of the execution petition amounted to Rs. 12,690-1-9. The appellants objected and asked for the scaling down of that amount. The objection was opposed by the decree-holders challenging the Court''s power to scale down the decree. On 6 3-1940, all that the Court did was that it decided that it had the power to scale down the decree. The actual scaling down was left to a later date and was done on 20-4-1940. Till that date, there was no final order in the matter and it cannot be said that the question between the parties had been determined. Hence, I do not think that the decree-holders had any right of appeal against the order of 6-3-1940. It follows that the order of that date is not final against them.

There is, however, a more serious objection to the maintainability of this cross objection, namely, that the other judgment-debtors, against whom the appellants are trying to execute the decree, have not been impleaded in this appeal. Mr. Rao calls our attention to the provisions of Order 41, E. 22, which provides that:

Any respondent, though he may not have appealed from any part of the decree, may not only support the decree on any of the grounds decided against him in the Court below, but take any cross-objection to the decree which he could have taken by way of appeal,

provided he has filed such objection within the time prescribed therein, and urges that, under this rule, the cross-objector is entitled to raise any point which he could have taken in appeal. It is true that the words of this rule, at first sight, support his contention, but they have been interpreted in a restricted sense by several High Courts in India, including this Court: vide Official Trustee of Bengal v. Charles Joseph Smith AIR 1920 Pat 77 and Mt. Chanda Bibi Vs. Mohanram Sahu and Others, . Sub-rule (3) of this rule, which provides for the service of notices on parties affected by the cross-objection, further indicates that the ordinary rules of hearing apply to cross-objections, and it is not intended that, in pursuance of a cross-objection, a point can be decided against a party behind his back. In the present case, on application of the appellants the decree has been scaled down. Mr. Rao points out that a previous petition under Sections 11 and 13, Orissa Money-lenders Act, filed by some of the other judgment-debtors was rejected on 21-9-1939, on the ground that this is a mortgage-debt, and those judgment-debtors, having acquired their interest prior to the coming into force of the Act, are not entitled to the benefits of the Act. We are concerned, however, with a mortgage decree, which by its nature is one and indivisible, and when the amount due under the decree was scaled down in favour of the appellants Judgment-debtors, the benefit of that scaling down enured to the other judgment-debtors. They are entitled now to claim the benefit of the scaling down, and if the cross-objection is allowed to succeed against the appellants, we will be left with the position of two inconsistent decrees against the two sets of judgment-debtors. Mr. Rao seeks to meet this objection by requesting this Court, in exercise of its powers under Order 41, Rule 20, to implead the other judgment-debtors and dispose of the cross-objection in their presence. The decree-holders cross-objectors had their opportunity of filing an appeal against the order scaling down the decree, but did not choose to do so. Having allowed that order to become final against them so far as the judgment-debtors, who have not appealed, are concerned, I do not think that they can now ask the Court to permit them to raise the point by way of a cross-objection by exercising its discretionary power under Order 41, Rule 20, and impleading the judgment-debtors, who are not on the record.

On the above grounds, both the appeal and the cross-objection fail and are dismissed. In the circumstances of the case, the parties will bear their own costs.

Beevor, J.

I agree.