Romanath Sen vs Russick Lall Pal

W. Comer Petheram, C.J., Norris and O''Kinealy, JJ.—The only question which we think it is necessary to decide in this case is whether the assignee can recover the whole of the debt assigned to him, in an action brought by him against the debtor, or whether he is precluded by Section 135 of the Transfer of Property Act from recovering in the action more than the amount which he paid for the debt, notwithstanding that, though the smaller sum is admitted to be due, it has not been paid and is not paid into Court in the action.

If the matter were new there is no doubt that it might be argued with much force that the words, "be against whom it is made is wholly discharged" by paying to the buyer the price and incidental expenses of the sale with interest, etc.," must mean that the debtor cannot be compelled to pay any larger sum, but it may equally be argued that as the section takes away a right it must be strictly read, and that it only gives the discharge upon actual payment. As appears in the judgment of the Court below it has been held by two Division Benches of the Court that nothing short of actual payment of the smaller sum, either in or before the action, will entitle the defendant to the benefit of the section, and these decisions are binding on us, unless we are prepared to say that we so entirely disagree with them as to render it necessary for us to refer the question to a Full Bench.

This we cannot say is the state of our minds, and though, as we have before said, we should, if the matter were new, feel that the argument in favour of the defendant''s view had considerable force, we are not prepared to say that we do not agree with the conclusions at which two Benches of this Court have arrived. We think that the appeal should be dismissed with costs.

After the above portion of this judgment had been written the case of Muchiravi Barik v. Ishan Chandra Chuckerbutti ILR Cal. 568 and others in which precisely the same questions arose, as those which arise in this case, was referred to a Full Bench; That Bench has now decided that a mortgage debt is an actionable claim within the meaning of Section 135 of the Act, and agreeing with the decisions of this Court that the defendant is not released by the section of any portion of his liability, unless he pays the amount which the assignee himself paid for the claim. The decision of course concludes this case, and in accordance with it this appeal will be dismissed with costs.