LexSRIMA ASHRLATA DEBI AND OTHERS versus SRI JADU NATH ROY AND OTHERS
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;954
-Olpril 26.
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· '.SRIMA'.I!I .ASHRLATA' E>EBI" AND 'OTHER:s·'
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' SRLJl\.DU NATH ,kby' AND OTH~R~.
[MEHll< CHAND
·MAH'AlfAN1 G;J.,, ·BIJAN "KUMAR
MuKHEliJEA, V1V1AN Bbst, N'.·. ti'. "BliAciWATi ·and
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T.t.VENKi!~~X'H~)JJ' =~.'· ' -
'Indian ·Indepetiiience ('liga/' Pi-oceedirigs) ' Order, ·'1947;• ·p<ra. 4 ~
(2)-Neiv decree passed in,,proceedings · -under section. 36 :of Bengal
Money Lenders Act, 1940,. pending i,i, _the Coqrt of;, Subordinate
fudge, Alipore, on the 15th August, 1947-Bulk of properties in
respett:of the new decr~e situaied'itr East'·Pakistdn-'-Appeal filed after
15t'h Augustj' •1947"'-Whether competent to Calcutta :High· Coart-
Bengal.Money LendersAct, 1940, (!Act:X.of 1940.);•section 36(2)~New
decree-Default :made- by. ,judgment.deb;or7Applicotio~ by, .decree-
holder }.or re-restoration of propertiei---:-fl.n qpplicqti'r:>_n .. for , ex~cution
...c.Orders on such applicaiion~Appi:alable: •
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Para. 4{2) of •the lhdian Iiitlependence '(t.egal' 'PrO:,,edirigs)
Order,- 1947; runs as Under:~'
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"4 .. Notwithstanding
the. -creation
of· · cCrtain
newl Provinces
and , the transfer .of !=ertain
-~erritori~s . ;from the Pi:-ovin~e. 9f ·Assam
to the Province of East
Bengal b-f the Indian IIJ.dependence Act
1947... . . . . . . . . .. . . . . .. .
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(2) .Any, appeal or ., application for reyisio.n. in . rt:spect of any
proceedings So 'pending ill any ·such., CoUrt shall lie
in. 'the' Court
which ' ·would
have a:j:lpellate, - o"r . as . 'the· i:ase' may· ·be; lrevisional '-..( ~
jurisdiction over
that
Court .if the·· ·proceedings -were ·instituted.- in
that ·Court· after 'the appointed day . ... '. . · .. _
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An
application
-by ·the
.deciee-holder · for
·re~reStoi"ation · of
properties by reason of the default made by, the ju<lgment_-debtor
after a new 9ecree. ha.cl been pass.ed . under, section 36 0£, th~, 13.engal
MOney Lenders· Act~ 1940, was pen'.dilig in' the COurt of the Slibordi-
nate Judge, Alipore, on 15th August, 1947;'-\Vllen tlie hulk'· of the
properties,
whiCh Wete thC· su:bje"Ct-matrCr ·of the· rieW' dectee, went
to East .Pakistan· as being.· situated. ·there.' The,. application
was
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saved-,. by- - the_ provisions of para. 4(.1)
which _provided , for. the , ,
continuance in 'the
same Court of ·these proceedings as, if. the said
Act (Indian
Independence Act)
had not been passed. It was con-
tended that the appeal to the High Court filed by the decree-
holder was- ·not' sa:ve<I by para. 4(2) as it was filed after 15th
August, 1947, as the words "if the proceedings were instituted in
this Court" in the said para. should mean "if the proceedings could
have been instituted in that Court."
Held, that the appeal from the Court of the Subordinate Judge
was competent to the Calcutta High
Court because the only con-
struction that
could be put upon .. this provision was that the Cou{C. \
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having appellate or revisional jilriSdiCtion over
that
Court would
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SJ~:R.:
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have such .iurisdiction as if. t~e 11roc~edings hi!d. . been instituted in
that Court after the 15th Aut11st, 1947.
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An application by the. dc:cre~-holder was in .substance an appli-
cation for .the execution of the new ·decree which had been passed
under section 36 ·of the Bengal Money Lenders Act, 1940. Orders
passed
on
such
applications
for
execution
would
be
clearly
appealable. . .
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The reasoning of the High Court that such . an application was
an applicatiop. in the suit for a special . r,emedy given under a
special .law ~nd that .the rules of Civil Procedure Code applied and
an
appe~ lay against such orders because they were decrees with-
in the· definition of section 2(2) of the Civil Procedure Code was
not• sustainable and could not be accepted.
Tirlok Nath v. Moti Ram and Others (A.LR, 1950 East Punjab
149) referred to.
CIVIL
APPELLATE
JurusmcTION : · Civil
Appeal
No. 69 of 1952.
Appeai from the Judgment and Decree dated the
27th April, 1950, of the High Court of Judicature at
Calcutta (Sen & Chu!lder JJ.) in Appeal from Original
Decree No. 19 of 1948 .arising out of the Judgment and
Decree dated the 27th September, 1947, of the Court
of the· Subordinate Judge, Third Court of Zillah, 24-
Parganas,. at AExcerpt shown. Read the full judgment & AI analysis in Lexace.