Sailendra Nath Mukherji vs Sudhamay Basu

Das, J.—This is an appeal on behalf of the Plaintiff and arises out of a suit u/s 36 of the Bengal Money-lenders Act.

The Plaintiff is the borrower. He borrowed money from the Defendant bank on several occasions between the years 1927 and 1932. The total amount advanced between these dates amounted to Rs. 825. The loans were simple contract debts and bore interest at 15 per cent, per annum. In the last transaction the interest was to be paid six monthly and there were six monthly rests. In the previous transactions the interest stipulated was simple and not compound. The borrower made small payments towards these debts. Ultimately, in 1935, the lender, that is, the Berhampore Bank, instituted a money suit, being Money Suit No. 78 of 1935, in the court of Munsif, First Court, Berhampore, for recovery of a sum of Rs. 1,429-11. Interest was calculated at the stipulated rate. The suit ended in a compromise on April 20, 1925. On that date the borrower paid a sum of Rs. 400 and there was a consent decree for a sum of Rs. 1,240-5-6. Thereafter the borrower paid a sum of Rs. 100 only. The lender, the Berhampare Bank, thereupon started Money Execution Case, No. 548 of 1938, and brought the disputed property which is the undivided share of the Plaintiff borrower, to sale on August 20, 1939. At the sale the lender, the Berhampore Bank, was the purchaser, the price being Rs. 100 only.

Thereafter, in 1941, a suit for partition, being Suit No. 27 of 1941, was instituted. A preliminary decree for partition was made on February 11, 1942, which was followed by a final decree on February 6, 1943. It appears that the lender, the Berhampore Bank, instituted Money Execution Case No. 83 of 1942 for recovery of the balance of the dues under the money decree. On September 11, 1944, the borrower started the present suit u/s 36(1) of the Bengal Money-lenders Act with the usual prayers for reopening the money decree for payment of the sum that would be found due in instalments and for restoration of possession of the properties purchased by the decree-holder at the execution sale on September 14, 1944, possession was taken in terms of the final decree in the partition suit. On September 16, 1944, the decree-holder auction-purchaser, the Berhampore Bank, sold the disputed properly to Defendant No. 2, the district board of Murshidabad for a sum of Rs. 4,500.

In the suit under, Section 36 of the Bengal Money-lenders Act, two sets of defences were filed, one by the Berhampore Bank and another by the district board. The defences taken were that the Plaintiff borrower was not entitled to restoration of possession of the disputed property inasmuch as the district board was a bona fide purchaser for value, without notice of the suit.

The trial court was of the opinion that the decree was liable to be reopened, inasmuch as it contravened the provisions of Section 30 of the Bengal Money-lenders Act. A new decree was accordingly passed for a sum of Rs. 1,175-7 which was made payable in five instalments from 1353 B.S. onwards. The prayer for restoration of possession was, however, disallowed on the ground that the district board was a bona fide purchaser for value without notice of the suit. Against the decision of the trial judge the Plaintiff borrower preferred an appeal. The appeal was dismissed. The Plaintiff borrower has come up to this Court in Second Appeal.

Mr. Banerjee, learned Counsel appearing for the Plaintiff Appellant, has raised two contentions. In the first place, he contended that the finding of the lower appellate court that the transfer to the district board was bona fide for value without notice of the Plaintiffs suit is not a proper finding, because the lower appellate court has not approached the case from a proper angle and has not considered the material evidence on record. In my opinion, the finding, whether a purchase is a bona fide one or not, is essentially a question of fact. It is impossible for me to say that the lower appellate court did not consider all relevant evidence. As the finding of the lower appellate court is based on evidence which is admissible in law a court of Second Appeal is not entitled to reverse the finding of fact. The sufficiency or, otherwise of the evidence, is not a matter which can be canvassed in second appeal. The first contention raised must, therefore, be overruled.

The second contention, which was raised, on behalf of the Appellant, by Mr. Banerjee, learned Counsel for the Appellant, was that the transfer to the district board, Murshidabad, was hit by the doctrine of lis pendent and, as such, the purchase pendente lite by the district board was subject to any decree for restoration of possession, which might be passed in the suit u/s 36(1) of the Bengal Money-lenders Act the suit having started before the district board made the purchase from the Berhampore Bank. In my opinion, this is not the proper way, of looking at the matter The right to relief u/s 36 of the Bengal Money-lenders Act flows From the terms of that section. The jurisdiction which has been conferred on the court u/s 36 of the Bengal. Moneylenders Act is a special jurisdiction. The limits of such jurisdiction must be determined by the terms of the Act itself. Section 36(1) empowers the court, if it is of opinion that the exercise of the powers conferred by the section will give relief to the borrower, to exercise all or any of the powers which are mentioned in Clauses (a) to (e) of Section 36(1). Section 36(2) follows in the wake of Section 36(1) The powers u/s 36(2) of the Act can be exercised only if the court in exercise of the powers conferred by Sub-section (1) direct the reopening of the decree. The different Clauses (a) to (e) of Section 36(2) prescribe the ambit of the powers which the court will exercise in cases the court decides to reopen the decree. Clause (c) of Section 36(2) deals with the question of restoration of possession. It empowers the court to order the restoration of possession to the judgment-debtor, that is, the borrower of such property, if any, of the judgment-debtor which has been acquired by the decree-holder in consequence of the execution of the reopened decree as may be in the possession of the decree-holder at the date of the reopening of the decree. In other words, the judgment-debtor (the borrower) can only ask the court to put him in possession of his property, which was acquired by the decree-holder as a result of the execution of the decree sought to be reopened and which is still in the possession of the decree-holder at the date of the reopening of the decree. In other words, the material point of time which has to be considered in determining the question of restoration of possession is not the date of the suit by the borrower but the date when the court exercising its powers u/s 36 of the Bengal Moneylenders Act directs a reopening of the decree. Obviously, the effect of Clause (c) is to preclude the doctrine of lis pendens from applying in so far as it concerns restoration of possession of the properties sold by the decree-holder pendente lite. Section 36(2)(c) clearly says so. Where, however, the purchase pending a suit or proceeding u/s 36 of the Bengal Money-lenders Act is a mere benami purchase or a colourable purchase, there is no real transfer of possession and such cases are outside the purview of Section 36(2)(c). But where the transfer by the decree-holder auction-purchaser is a real one entered into bona fide for consideration, the purchaser acquires an independent title which cannot be affected either by the terms of Section 36(2)(b) or of Section 36(2)(c), in so far as restoration of possession is concerned.

Learned Counsel for the Appellant drew my attention to the case of Manika Gramani v. Elloppaa Chetti ILR 1896 Mad. 271 and Dose Thimmanna Bhutta v. Krishna Tantri ILR (1906) Mad. 508. These cases relate to the effect of a decree in a suit for maintenance where the Plaintiff in such a suit prays for recovery of maintenance either out of the estate of the Defendant or out of specific property of the Defendant. As I have said, the applicability of the doctrine of lis pendent is excluded by the express terms of Section 36(2)(c) of the Act. That section proceeds on the footing that, in so far as restoration of possession is concerned, the rights of the parties are to be adjudged by the state of things as it is on the date of the reopening of the decree. As a court of construction, it is not for me to consider the policy underlying that section. The clear terms of the section negative the right of the borrower to get possession of the property in the hands of a bona fide purchaser for value without notice of the Plaintiff''s claim, if such possession was acquired by the latter before the date of the reopened decree.

I My also point out that, in the present case, Mr. Sen, learned Counsel appearing for the district board, laid stress upon the fact that the original suit was one for recovery of money and, as, such, the doctrine of lis pendens cannot apply. In my opinion, this submission proceeds on a misapprehension of the argument advanced on behalf of the Appellant. The Appellant''s argument was that it is the nature of the suit u/s 36 of the Bengal Money-lenders Act which is material. His contention was that in such a suit if the Plaintiff borrower prays for recovery of possession a right to immovable property is directly and specifically in question. I have already dealt with this argument. I would add that it is difficult to say that in such a suit the right to immovable property is directly and specifically in question. The court merely scales down the interest decreed if it is in excess of Section 30. The right to recover possession only accrues to the Plaintiff borrower under certain circumstances and that right can only be availed of after the court has made an order reopening the decree and directing restoration of possession. The restoration of possession is also conditioned by Section 36(2)(e). For the reasons aforesaid the second contention raised on behalf of the Appellant must, be overruled.

The result, therefore, is that this appeal fails and is dismissed Having regard, however, to the circumstances of this case I direct that the parties should bear their own costs in this appeal.

Leave to appeal under Clause 15 of the Letters Patent is asked for and is refused.

Appeal dismissed.