LexHARIDAS MONDAL versus ANATH NATH MITTRA.
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880 SUPREME COURT REPORTS [1961) 1961 this a. case of. a. receipt of any money or movable properties.; nor is there any question of entering into • Sarda Prasad an agreement or compromise on behalf of the· minor. • LolaJu.:~.PrasaaFor, clearly acceptance of delivery of possession of - property in terms of the decree in a pa.rtit ion suit, can Das Gupta J. by no stretch of imagination be considered enteri~g into any" agreement or compromise." F~brua,.y 2I. We a.re therefore of the opinion that Jawala Prasad, the managing member of the family could have given a discharge.of the liability under the partition decree by accepting delivery of possession on behalf of his minor sons without their consent and so time ran against them also under s. 7 of the Limitation Act from the date of the decree. The High Court was .therefore right in its conclusion that the application for execution· was barred by limitation. The appeal is accordingly dismissed with costs. Appe,al dismissed. HARIDA8 MONDAL ' v. ANATH NATH MITTRA. (J. L. KAPUR, M. HII~AYATULLAH and J.C. SHAH, JJ.) Money lending-Reopening of transactions-Successive suits by borrower for relief-Maintainability-Res judicata-Ben~al Money·lenders Act, r940 . (Ben. X of 1940), s. 36-Code of C•vil Procedure, r908 (~ct V of r908), s. II, 0. 2, r. 2. ' , 'The appellant obtained a preliminary and then a final mort- gage decree against the respondent and thereafter a personal decree for the debt remaining due to him after sale of the pro~ pcrty mortgaged: The appellant applied for execution ofthe personal decree 'and thereupon the respondent sued 'for relief under s. 36 of the Bengal Money-lenders Act, r940, by reopening the personal decr~e, In the suit relief for reopening the prelimi- nary .decree and. final decree was not claimed, The personal decree was reopened in that suit and an instalment decree for a smaller amount passed instead, which was ultimately' upheld', by the High Court. The respondent failed to pay the instalments and the appellant applied for executing· the decree; The res- pondent then filed another suit under s. 36 of the Act for reopen- ing the preliminary and final decrees. The Subordinate Judge dismissed the suit holding that it was barred as res judicata and the District Judge on appeal affirmed that decision. But the ·V 3, S.C.R. SUPREME COURT REPORTS 881 High Court in second appeal reversed those decisions and direct- I96I ed the preliminary and the final decrees be reopened and . remanded the case to the trial court for passing a fresh prelimi- Handas Moxdal nary decree. Hence this appeal with special leave. A v,h M. nath N al '"'~ Held (per Kapur and Shah, JJ.), that s. 36 of the Bengal Money-lenders Act, 1940, contemplated the filing of one and not successive suits for the reopening of transactions ihcluding decrees and ohtaining relief under the Act. If in such a suit, the borrower failed to seek the entire relief he was entitled to and abandoned his right to a part of the relief, he would be pre- cluded from seeking that relief in another suit. The principle underlying r. 2 of 0. 2 of the Code of Civil Procedure as also t.he principle of res judicata applied to a suit under s. 36 of the Act. Per Hidayatttllah, J.-When the respondent moved the exe- cuting court under s. 36 of the Act he had not filed a suit bnt only an application. It was the duty of the court thereunder to give him full relief although he might not have asked for it. If the court failed in its duty and he filed a sujt no question of waiver or constructive ·res judicata could at all arise. This was made clear by the non obstante words of sub-ss. (1) and (6) of s. 36 and the question that arose under the section was not so much of the right of a party as of the dnty of the court to give entire relief under the Act. The remedies enjoined by the Act were not exclusive of one another, either expressly or by necessary intendment, and were intended to give the widest possible relitif to the borrowers. Jadhunath Roy v. Kshitish Chandra Achariya Choudhury (1949) L.R. 76 I.A. 179 and Joy Chand Lal Babu v. Kamalaksha Choudhury, (1949) L.R. 76 I.A. 131, referred to. Since the Act required that the decrees passed against the respondent had to be reopened, no provision of the Code of Civil Procedure or of equity could bar the suit, the former being expressly excluded and the latter made inapplicable by the sub
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