LexKUMAR PASHUPATINATH MALIA & ANOTHER versus DEBA PROSANNA MUKHERJEE
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
1951 Karnani Industrial Bank Limited v. The Province of Bengal and Other1. Faz/ Ali J. 1951 May 4 572 SUPREME COURT REPORTS [1951] The appeal therefore substantially fails and it is dismissed with costs. But it should be made clear m the decree that only the building materials such as bricks, tiles . and similar articles that might have been manufactured by the appellants on the demised pre- mises shall become the property of the respondent No. 1. As for the boilers, engines, trucks, kilns, rail- way and tram lines, etc., three months' time is given from the date of this decree to enable the appellants to remove them from the demised premises. Appeal dismissed. Agent for the appellant : Raji11der Narain. Agent for respondent No. 1 : P. K. Bose. KUMAR PASHUPATINATH MALIA & ANOTHER v. DEBA PROSANNA MUKHERJEE. [SHR1 HARILAL KANIA C. J., PATANJALI SAsTRI and s. R. DAS JJ.] Bengal Money Lenders Act (X of 1940), u. 2(22), 36(5)-Relief under s. 36--"Suit to which this Act applies"--Suit in which execution proceeding tvas pending on /an. 1~ 1939-Execution Case struck off but attachment continuing in force on Jan. l, 1939-Applicability of Act-Civil Procedure Code (V of 1908), 0. 21, r. 57-Striking off execution case keeping attachment in force- JV he th er terminate)· execution proceeding--Sub·mortgagee-W hether assignee of mortgage-Right to claim protection under s. 36(5). ~ decree on a mortgage was passed in a suit brought by the representatives in interest of a sub-mortgagee in 1929 and a personal decree for recovery of the amount remaining due after the sale of the mortgaged properties was passed in 1935. In 1936 the decree-holder started execution of the personal decree and attached certain properties of the judgment-debtor. The decree-holder filed a petition on January 30, 1937, praying that the execution case "may be struck off for non-prosecution, keep- ing the attachment in force" in Yiew of certain negotiations for amicable settlement, and the court passed an order that the: execution case "is dismissed for non-prosecution, the attachment ' S.C.R- SUPREME COURT REPORTS 573 already effected continuing". On June 2, 1939, the decree- holder filed a petition statir>g that the decree had been adjusted and attachment may be withdrawn. The Bengal Money-lenders Act came into force on September 1, 1940, and on January 2, 1941 the legal representatives of the judgment-debtor filed a suit 'under s. 36 of the Act praying for re-opening the trans- actions. The question being whether any proceeding ~or. execu- tions was· pending on or after January 1, 1939, w1thm the meaning of the definition of "a suit to which this Act applies", contained in s. 2(22) if the Bengal Money-lenders Act: Held, per KANIA C. /. and DAs J.-That the order of January 30, 1937, was in form and in substance a final order of dismissal of the execution petition of 1936. The attachment continued not because there was a pending execution proceeding but because a special order for continuing" the attachment was made under 0. 21, r. 57 of the Civil Procedure Code as amended by the Cal- cutta High Court, and notwithstanding the fact that the attach- ment was continued there was no execution proceeding pending on January 1, 1939, and accordingly the decree sought to be re- opened was not one passed in "a suit to which the Act applies" within the meaning of s. 2(22) of the Act and the Court had no power to re-open the transactions under s. 36 (2). The petition of June 2, 1939, was also not a proceeding for execution but a mere certification by the decree-holder of satisfaction of the decree. PATANJALI SAsTRI J.-The continuance of the attachment notwithstanding the dismissal of the execution petition, indicated that the proceeding which had resulted in the attachment was kept alive to be carried forward later on by sale of the attached property. Attachment itself is "a proceeding in execution" and so long as it subsists, the proceeding in execution can well be regarded as pending. In this view a proceeding in execution was pending on January 1, 1939, and the decree must be taken to have been passed in "a suit to which this Act applies". But inasmuch as the sub-mortgage to the respondent's predecessor- in-title was bona fide and he obtained by virtue of the sub-mort- gage the right to .sue the original mortgagor for recovery of the mortgage
Excerpt shown. Read the full judgment & AI analysis in Lexace.