Nirmal Chandra Kanjilal vs Hrisikesh Banerjee

Mitter, J.—This is an appeal from an order for final decree for sale of the mortgaged properties mentioned in the plaint and for other incidental reliefs.

The facts are as follows: The mortgage dates back to the year 1915 having been executed by one Jadunath Kanjilal (father of the Appellants) since deceased, in favour of Mahendranath Banerjee for Rs. 9,000 in respect of premises No. 31/1, Hujurimal Lane, Calcutta and 3, Fordyce Lane, Calcutta. The mortgage remained unpaid and further advances were made by the mortgagee to the said mortgagor and in the year 1924 Jadunath Kanjilal executed another mortgage deed in favour of Mahendranath Banerjee for Rs. 28,000 in respect of the premises already mentioned as well as premises No. 32 Hujurimal Lane, Calcutta. Jadunath Kanjilal died intestate in the year 1930 leaving the Appellants and a widow Satyabati as his heirs and legal representatives. Mahendranath Banerjee died in the year 1936 leaving a will whereby he appointed Hrisikesh Banerjee and Kumudranjan Banerjee as executors and Nalinibala Devi as executrix of the said will. In 1936, probate of the will was granted by the District Judge of 24-ParganasIn 1938, the mortgage suit was filed by the said two executors and executrix against the Appellants. The Defendants did not enter appearance in the suit or contest the same. In January, 1939, the executrix Nalinibala Devi died and in April 1939 an order was made recording her death and striking out her name from the cause title and register of the suit. On February 2, 1940 a preliminary mortgage decree was passed ex parte in Form No. 5, Appendix D of the First Schedule to the Code of the Civil Procedure, whereby it was, inter alia, referred to the Registrar of this Court to take accounts and make a report. For some reason, which is not clear, the said decree was not filed until May, 28, 1945 and in consequence thereof, no accounts were taken by the Registrar for a very long time. On February 12, 1946, the Registrar made his report whereby he found that a sum of Rs. 73,769 would be due upon the mortgages on November 1, 1946. The said report was filed in this Court on April 17, 1946. The next step to be taken was an application by Kumudranjan Banerjee, one of the Plaintiffs, praying that the Registrar of this Court be directed to take fresh or subsidiary accounts in respect of the mortgages in suit and do calculate the amounts due to the Plaintiffs for principal and interest in accordance with the provisions of the Bengal Money Lenders Act, 1940 and that proper directions be given regarding application of the moneys realised and to be realised by the receiver appointed over the mortgaged properties and that the Registrar do make a fresh report to this Court. The application also included a prayer that it be recorded that Defendants 3 and 4 had attained majority and necessary amendments to the cause title be made. The original notice of motion and the affidavit of service were produced before us. The notice of motion shows that it was addressed to the four brothers (Appellants) as well as to Satyabati Devi, the widow of Jadunath Kanjilal. The affidavit of services shows that the notice of motion was served on the Appellants 1 to 4 as also on Satyabati Devi. The Appellants refused to sign in acknowledgement of receipt of the notice of motion. They did not appear at the hearing of the application and on February 25, 1953, an order was made directing the Registrar to take fresh or subsidiary accounts under the provisions of the Bengal Money Lenders Act. This order was filed on February 25, 1953. On August 16, 1956, an order was made transferring Kumudranjan Banerjee to the category of the Defendants and the cause title and register of the suit were ordered to be amended accordingly. On April 8, 1963, the Registrar after taking fresh accounts found that on November 15, 1963, the sum of Rs. 67,448 would be due from the Defendants to the Plaintiffs.

The notice of motion in respect of the application from which this appeal arises was taken out on December 20, 1963, by Hrisikesh Banerjee and directed to the four Appellants as well as to Satyabati Devi and Kumudranjan Banerjee.

The affidavit-in-opposition was affirmed on January 24, 1964, by Nirmal Chandra Kanjilal, Shibendranath Kanjilal and Sailendranath Kanjilal. The points taken therein were that the notice of the application on which the order of February 25, 1953, was made had not been served upon them and it was contended that the application was barred by the law of limitation. The affidavit-in-reply was affirmed on January 29, 1964, by Hrisikesh Banerjee. In para. 6 of this affidavit it was stated that the order dated February 25, 1953, had been passed on the application of Kumudranjan Banerjee who was then a co-Plaintiff with the Petitioner. Reliance was placed on the affidavit of service to show that the Appellants had duly been served with the notice of the said application.

Before the learned Judge hearing the application the points taken on behalf of the Appellants were as follows:

The application for final mortgage decree for sale was barred by limitation. It was argued that since the preliminary decree was passed on February 2, 1940 and the mortgagees did not take any steps for five years to file the decree, the Applicants were precluded from asking for final decree. It was further contended that after 1946 the mortgagees had waited for seven years and obtained an order on February 25, 1953 and this lapse of seven years did not have the effect of keeping alive the mortgagee''s right to ask for a final decree.

The learned Judge turned down the contentions raised on behalf of the Appellants. He held that the decree in Form No. 5 which was passed in this case required the Registrar to take accounts and the report made thereon was dated February 12, 1946. The order dated February 25, 1953, directed the Registrar to take fresh accounts under the provisions of the Bengal Money Lenders Act. As no period of limitation has been fixed for making an application under the Bengal Money Lenders Act, the application dated February 18, 1953, was not barred by limitation. The learned Judge further observed that the question of limitation should have been canvassed when the application dated February 18, 1953, was heard and relying on the decision in AIR 1921 23 (Privy Council) , the learned Judge held that it was open to the Respondent to raise the plea of limitation in 1953 and not having done so the said plea must be taken to have been decided against the Appellants.

Before us Mr. Subimal Roy raised the following contentions:

(i) The order of February 25, 1953, was not binding on the parties inasmuch as Hrisikesh Banerjee did not join in the application nor was he made a Respondent to the application. The order was, therefore, made in the absence of all necessary parties. There could be no res judicata in respect of such an order because Hrisikesh Banerjee could have come before the Court and challenged the validity of the order.

(ii) There being two executors to the estate of Mahendralal Banerjee, one executor was not competent to make the application dated February 18, 1953.

(iii) It was not open to a decree-holder to make an application u/s 36 of the Bengal Money Lenders Act. Consequently the order of February 25, 1953, was an invalid order. The application too was not a proper application. If that application be left out of account then the application for final decree made in 1963 was clearly barred by limitation inasmuch as the Registrar had made his report as far back as April 17, 1946.

The first point to note is that there is no suggestion in the affidavit-in-opposition of the Appellants for any contention raised before this Court below that the order of February 25, 1953, was void, because it was made in the absence of one of the executors Mr. Roy argued that as the records were all before the Court it was not difficult to come to the conclusion that Hrisikesh Banerjee did not figure at all in the said application either as an Applicant or as a Respondent. On the materials before us it is not possible to hold that Hrisikesh Banerjee took any part in that application or even that he was served with the notice of the application. In my opinion, however, it is not open to the Appellants to urge that point now. This is a matter which requires investigation into the facts. Further the point was not canvassed before the learned Judge hearing the application and there is no suggestion of it even in the grounds of appeal. I do not think it would be right on our part to allow the Appellants to raise this point on the facts of this case. Moreover, in our opinion, the Appellants are estopped from doing so on the doctrine of approbation and reprobation. They had full notice of the application when it was made in February, 1953. The affidavit of service shows that they were served personally with the notice of motion, but that they refused to put their signature in acknowledgment of the receipt. If it be the fact that the affidavit was false and they had not been served, they could certainly have come to this Court and made an application for varying or discharging the order which was made, according to them, without notice. By their failure to take any steps to avoid the order they have received benefit under the order inasmuch as where as under the first report of the Registrar dated February 12, 1946, the Registrar had found that the sum of Rs. 73,679 would be due from the Appellants on November 1, 1946, by the report of May, 1963, the Registrar found that a sum of Rs. 67,448 would be due to the mortgagees on November 15, 1963. If the old report had stood the amount due to the mortgagees would probably have exceeded Rs. 90,000 in 1963.

The principle that if there are two executors they must join in any legal proceedings connected with the estate of the deceased, is well-settled. In this connection our attention was drawn to two judgments of the Madras High Court, the first being Seerangathuni Vs. Bava Vaithilinga Mudaliar, and the second Vedakannu Nadar and Others Vs. Nanguneri Taluk Singikulam Annadana Chatram through its huktdars Medai Dalavoi Ranganatha Mudaliar and Others, . There can be no exception to this proposition of law If it be a fact that the executor Hrisikesh Banerjee was not before the Court in 1963 it was open to the Appellants to take that point on that application or if notice of the application had been suppressed from them, to make an application for the purpose on coming to know of it. They did not adopt either course, nor as already pointed out did they take this point in their affidavit-in-opposition before the learned trial Judge.

In our opinion an application by the decree-holder for scaling down the decree in terms of Section 36 of the Bengal Money Lenders Act was not invalid or improper. Section 36 gives power to the Court to reopen any transaction and take an account between the parties and do various other things mentioned in Sub-clauses (a) to (e) of Sub-section (1) of Section 36

if the Court has reason to believe that the exercise of one or more of the powers under that section will give relief to the borrower.

Normally no doubt it is the borrower who applies for relief under this section. But the words of the section suggest that the Court can even proceed suo motu. An observation to this effect occurs in the judgment in Jogesh Chandra Biswas v. Pran Krishna Kundu (1941) 46 C.W.N. 661. I see no reason to hold that the decree-holder who finds himself in peril of having his decree attacked later on by the judgment-debtor cannot apply to the Court so as to avoid trouble in the future. In our opinion, the decree-holder was justified in making the application u/s 36 of the Bengal Money Lenders Act.

With regard to the question of limitation it is enough to say that by their failure to take this point in 1953 it must be held that the Appellants are precluded from doing so now. In our view, the learned trial Judge was right in relying on the decision of the Privy Council in Raja of Ramnad v. Velusami Tevar Supra to overrule the plea of limitation. In the Privy Council case the Appellant was the assignee of a decree passed on September 26, 1907, for Rs. 35,063 and interest. The decree directed that the Plaintiff should at once draw out the money in Court approximating Rs. 3,000 and that the first and second Defendants should repay the balance within three months with interest and costs and in default of such payment the Plaintiffs should recover the same by the sale of the entire cowle right possessed by them including the interest if any of the third Defendant also and if the sale-proceeds were not sufficient for the purpose the Plaintiff should recover the deficiency from the first and second Defendants. The judgment-debtors made no payment. In 1909 the decree-holder put in his application for execution by sale and realised Rs. 27,000 and in December 1909 the sale was confirmed and possession delivered. An appeal by the judgment-debtors to the High Court was dismissed on April 8, 1911. The further amount recoverable from the first and second Defendants under the decree thereafter became definitely ascertained and on March 9, 1914, the Plaintiffs proceeded with the execution of the decree. While these proceedings were in progress the Appellant purchased the decree from the then Plaintiffs and on November 20, 1914, made his application to be brought oh the record as assignee of the decree and to have the decree executed. This was resisted by the Respondents or their predecessors in title on several grounds. They pleaded, inter alia, that the right to execute the decree was barred by limitation. The matter came on for hearing before the Subordinate Judge who by a judgment dated December 13, 1915, ordered that the transfer of the decree in favour of the Petitioner be recognized and the Petitioner be allowed to execute the decree. The Petitioner was further held entitled to make a fresh application for attachment. One of the Defendants applied for a review of this decision on the ground that the application was barred by limitation. On August 24, 1916, judgment was given dismissing this petition. The actual ground of dismissal was that it was out of time, but the order made by the Court showed that, according to the learned Judge, the order of December 13, 1915, did not reserve any question of limitation for future determination. The Appellant then proceeded to obtain the attachment of properties of the Respondents and during the year 1916 various claims to the properties were put forward and adjudicated upon by the Subordinate Judge and finally the matter came before the Subordinate Judge and was dealt with by an order dated March 31, 1917. In these final proceedings the Subordinate Judge permitted the Defendants to raise again the plea that the above order of December 13, 1915 did not preclude the Defendants from raising the plea that the application was barred by limitation. The Judicial Committee held that it was not open to the Subordinate Judge to admit this plea. It was observed:

The order of December 13, 1915, is a positive order that the present Respondent should be allowed to execute the decree. To that order the plea of limitation, if pleaded, would according to the Respondents'' case have been a complete answer and therefore it must be taken that a decision was given against the Respondents on the plea. No appeal was brought against that order and therefore it stands as binding between the parties. Their lordships are of opinion that it is not necessary for them to decide whether or not the plea would have succeeded. It was not only competent to the present Respondents to bring the plea forward on that occasion, but it was incumbent on them to do so if they proposed to rely on it and moreover it was in fact brought forward and decided upon. No appeal was brought from the order then made and therefore it was not competent for the Subordinate Judge to admit the plea on subsequent proceedings, or to consider it in his order of March 31, 1917 and the same remark applies to the judgment of the High Court on March 7, 1918, from which this appeal is brought.

In our opinion, the same remark may be made here. On the facts before us it must be held that with the notice of the application dated February 18, 1953, the Appellants did not choose to raise the plea of limitation. They did not go up in appeal. The order of February 25, 1953, therefore, became final on the question of the right of the mortgagees to make the application for a fresh report from the Registrar in terms of the Bengal Money Lenders Act. If the order on that application is held to be binding on the parties, a conclusion which is accepted by us, there is no question of limitation. Why it took the Registrar nearly 10 years to make the report is not clear. It is difficult to hold that the decree-holders were not to blame for this, but so long as the report was not made the decree-holder could take no further steps.

In the result, the appeal is dismissed. We cannot, but, take strong exception to the dilatory tactics of the decree holders throughout the litigation and in the circumstances of the case we think it is proper that the decree-holders should not have any costs from the Appellants either of the appeal or of the hearing before the learned trial Judge. We make this order although we are alive to the fact that the claim is in a mortgage suit and ordinarily the Court does not deprive the mortgagee of his costs. The parties will pay and bear their own costs throughout the case. Certified for two counsel.

Masud, J.

I agree.