26 April 1954
Supreme Court


Case number: Appeal (civil) 69 of 1952






DATE OF JUDGMENT: 26/04/1954


CITATION:  1954 AIR  409            1955 SCR  150

ACT:    Indian  Independence,  (Legal Proceedings)  Order,  1947, para.  4 (2)-New decree passed in proceedings under  section 36 of Bengal Money.  Lenders Act, 1940, pending in the Court of Subordinate Judge, Alipore, on the 15th August, 1947-Bulk of properties in respect of the new decree situated in  East Pakistan  -Appeal  filed  after  15th  August,  1947-Whether competent  to Calcutta High Court Bengal Money Lenders  Act, 1940 (Act X of 1940), section 36(2)-New decree-Default  made by  judgment-debtor-Application  by  decree-holder  for  re- restoration  of  properties-An  application  for   execution -Orders on such application-Appealable.

HEADNOTE:   Para. 4(2) of the Indian Independence (Legal  Proceedings) Order,-1947, runs as under:-   " 4. Notwithstanding the creation of certain new Provinces and the transfer of certain territories from the Province of Assam  to  the  Province  of  East  Bengal  by  the   Indian Independence Act, 1947............... (2)Any appeal or application for revision in respect of  any proceedings  so pending in any such Court shall lie  in  the Court  which  would have appellate, or as the case  may  be, revisional jurisdiction over. that Court if the  proceedings were   instituted   in  that  Court  after   the   appointed day............... An  application by the decree-holder for  re-restoration  of properties  by reason of the default made by  the  judgment- debtor  after a new decree had been passed under section  36 of  the Bengal Money Lenders Act, 1940, was pending  in  the Court  of  the Subordinate Judge, Alipore, on  15th  August, 1947,  when  the  bulk of the  properties,  which  were  the subject-matter  of the new decree, went to East Pakistan  as being  situated  there.  The application was  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 decreebolder  was  not saved 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 construction that could be put upon this provision  was that  the Court having appellate or revisional  jurisdiction over that Court would 151 have  such  jurisdiction  as if  the  proceedings  had  been instituted in that Court after the 15th August, 1947. An  application  by the decree-holder was  in  substance  an application  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. The reasoning of the High Court that such an application was an application in the suit for a special remedy given  under a  special  law and that the rules of Civil  Procedure  Code applied  and an appeal lay against such orders because  they were  deerees within 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.I.R. 1950 East  Punjab 149) referred to.

JUDGMENT:     CIVIL  APPELLATE, JURISDICTION: Civil Appeal No.  69  of 1952. Appeal  from the Judgment and Decree dated the  27th  April, 1950,  of  the High Court of Judicature at Calcutta  (Sen  & Chunder  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,  24Parganas   at   Alipore   in Miscellaneous Judicial Case No. 31 of 1947. Sukumar Ghose for the appellants. Bankim Chandra Banerji and R. R. Biswas for respondents Nos. 1, 2, 8 & 9. 1954.  April 26.  The Judgment of the Court was delivered by BAAGWATI  J.-This  is  an appeal against  the  judgment  and decree of the High Court of Judicature at Calcutta reversing the   order  of  the  Third  Subordinate   Judge,   Alipore, dismissing  the respondents applications for  re-restoration of certain immovable properties. One Romesh Chandra Acharji Choudhury (deceased) predecessor- in-interest  of the appellants borrowed on the 16th  August, 1918, Rs. 1,60,000 and Rs, 73,000 from the  predecessors-in- interest  of  the respondents under two deeds  of  mortgage. There  being  default in payment of the mortgage  amounts  a suit  to  realise the mortgage securities was filed  on  the 10th March, 1926, 152 in   the  Third  Subordinate  Judge’s  Court,  Alipore.    A preliminary mortgage decree for Rs. 4,21,851.1-6 was  passed on  the 4th April, 1929, and a decree absolute for sale  was passed   on  the  13th  September,  1929.    The   mortgaged properties were put up for sale in execution proceedings  in 1930  and  the decree-holders purchased  the  properties  at auction  sales  on  the 29th February, 1932,  and  the  23rd April, 1935, for an aggregate amount of Rs. 2,35,200.  These sales  were duly confirmed and the  auction-purchasers  took



delivery  of  possession of different items of  property  on different  dates  between the 25th June, 1933, and  the  9th March,  1936.   The  aecree-holders  obtained  on  the  13th December, 1937, a personal decree under Order XXXIV, rule 6, of  the  Civil Procedure Code for the balance due  to  them, viz., Rs, 3,30,903.  This personal decree was also  executed and some properties of the mortgagors were purchased by  the decree-holders  on the 8th August, 1939, for Rs.  3,899  and delivery of possession of these properties was duly given to them on the 6th July, 1940. Kshitish  Chandra  Acharji Choudhury,  since  deceased,  the predecessor-in-interest  of the appellants Nos. 1 to  3  and Jyotish Chandra Acharya Choudhury, the appellant No. 4, sons of the mortgagor filed on the 9th December, 1940, a petition under  section 36 of the Bengal Money Lenders Act (Act X  of 1940)  for  reopening the mortgage decree and  the  personal decree.   By  an  order dated the  25th  August,  1941,  the learned  Subordinate Judge reopened the decrees and  on  the 10th  May,  1943,  passed  a new decree for  a  sum  of  Rs. 3,76,324-12-4.  The said sum was directed to be paid by  the judgment-debtors  to  the decree-holders  in  fifteen  equal annual instalments.  He also directed the restoration of the properties purchased by the decree-holders. The  present respondents preferred, on the 19th June,  1943, an  appeal to the High Court of Judicature at  Calcutta  and cross-objections  were  filed by the said  Kshitish  Chandra Acharji Choudhury and appellant No. 4. By their judgment and decree  dated the 29th June, 1944, the High  Court  affirmed the  decree  of  the  Court  below  with  some   substantial variations and 153 passed  a  new  decree in favour  of  the  mortgagors.   The mortgagees were ordered to put the mortgagors in  possession of  all the properties they had purchased in’  execution  of the  reopened decrees and render to them an account  of  the mesne  profits of those properties from the 15th  September, 1941,  till they restored or relinquished possession to  the mortgagors  of  the collection papers of  those  properties. The  sum of Rs. 3,76,324-12-6 was declared to be due by  the mortgagors to the mortgagees and the mortgagors were to  pay the  same  in twenty equal annual instalments the  first  of such  instalments  to  be  paid  on  or  before  the   first anniversary of the date on which the mortgagees restored  or relinquished  possession of all the properties purchased  by them in execution to the mortgagors or of the date on  which they  delivered to the mortgagors the collection  papers  as therein mentioned, whichever date was later.  The mortgagors were  to  pay  to  the  mortgagees  the  successive   annual instalments  on  or before the same date of  the  succeeding years on which the first instalment became payable and  they were  also  to  pay  the annual  revenue  of  the  aforesaid properties  that  would  become  payable  after  they   were restored  to possession kist by kist, as they fell  due,  at least three days before the kist dates and file the challans in  the Court below in proof of payment within ten  days  of the  payments.  The road, public works and education  cesses and rent due to the superior landlords were also to be  paid similarly by the mortgagors and in default of payment of any one instalment or cesses or rent within the time prescribed, the  mortgagors were entitled to get back possession of  the said  properties from the mortgagors and in that  event  the sum  of Rs. 2,39,099 at which the mortgagees  had  purchased those  properties would be balanced against the amount  then due  to  them under the decree.  If  thereafter  any  amount still  remained due to the mortgagees under the decree  they



were  entitled to apply in the Court below for a decree  for the  balance  under  Order  XXXIV,  rule  6,  of  the  Civil Procedure  Code.   An  enquiry was ordered  into  the  mesne profits  for  the period between the 15th  September,  1941, till the restoration of possession to the mortgagors and 20 154 the  mortgagors were at liberty to set off the  amount  that might  be decreed in their favour for mesne profits  towards the instalment that fell due in the year in which the amount was  declared  by the Court below and  the  next  succeeding years till the said amount was wiped off. Possession  was  delivered  to the  mortgagors  on  the  5th October,  1944.  The delivery of the collection  papers  was however given on the 28th March, 1945.  The mortgagors  were alleged  to  have committed default in the  payment  of  the second  instalment  which was due in any event on  the  28th March, 1947, and also in the payment of the revenue kist and the  cesses  which  were due on or  about  that  date.   The mortgagees  therefore made applications in the Court of  the Third  Subordinate  Judge at Alipore on the  6th  September, 1946, and the 18th April, 1947, asking for re-restoration of the properties.  Several defaults were alleged but only  two defaults  were pressed, one in regard to the payment of  the second instalment which was due on the 28th March, 1947, and the  other in regard to the payment of the revenue  and  the cesses of the Noakhali properties due also on the same date. The learned Subordinate Judge rejected these applications by his order dated the 27th September, 1947, holding that there was  no default in the payment of revenue and cess and  that the  default in payment of the second instalment  though  it had  accrued  was due to the wrongful acts  of  the  decree- holders  themselves  and that the, decree-holders  were  not entitled  to take advantage of their own wrong.   An  appeal was  preferred to the High Court of Judicature at  Calcutta. The  appeal was allowed on the 27th April, 1950.   The  High Court  held  that  a  default  had  been  committed  by  the mortgagors  and  ordered rerestoration  of  the  properties. This  appeal has been filed against that order of  the  High Court  with  certificate  under  article  133(1)(a)  of  the Constitution. Shri  S. Ghosh appearing for the appellants before us  urged that  the  bulk of the properties which  were  the  subject- matter of the new decree had gone to Pakistan after the 26th January, 1950, being situated in East Pakistan and the  High Court at Calcutta had 155 after the 26th January., 1950, no jurisdiction and power  to determine  the appeal and to pass an order relating  to  the immovable  properties situated in foreign  territories.   He further  urged  that  the  order  of  rerestoration  of  the properties  was  not  appealable and that in  any  event  no default had been committed by the mortgagors. In  support of his first contention reliance was  placed  on paragraph   4(2)   of   the   Indian   Independence   (Legal Proceedings) Order, 1947, which ran as under:--- "4.  Notwithstanding the creation of certain  new  Provinces and the transfer of certain territories from the Province of Assam  to  the  Province  of  East  Bengal  by  the   Indian Independence Act, 1947................... (2)  Any  appeal or application for revision in  respect  of any  proceedings so pending in any such Court shall  lie  in the Court which would have appellate, or as the case may  be revisional jurisdiction over that Court if  the proceedings were instituted in that Court after  the



appointed day;......... " The  applications for re-restoration of the properties  were pending before the Third Subordinate Judge at Alipore on the 15th August., 1947, and they were saved by the provisions of paragraph  4(1)  which provided for the continuance  in  the same Court of these proceedings as if the said Act that  is, Indian Independence Act, 1947, had not been passed.  But  he contended that paragraph 4(2) did not save the appeal  which had  been  filed by the mortgagees after  the  15th  August, 1947.   We cannot accept this contention of  the  appellant. Paragraph  4(2)  provided for appeals  or  applications  for revision in respect of proceedings which were pending in the Courts after the 15th August, 1947, and laid down that these proceedings  by way of appeal or applications  for  revision could  lie  in  -the Courts which would  have  appellate  or revisional  jurisdiction over that Court if the  proceedings were  instituted in that Court after the 15th August,  1947. It was contended that for the purpose of this provision  the words  "if  the proceedings were instituted in  that  Court" should  be  read as meaning "if the proceedings  could  have been 156 instituted  in that Court." This certainly could not be  the meaning,   because  by  reason  of  the  transfer   of   the territories  no  proceedings in respect  of  the  properties which had gone to Pakistan’ could ever have been  maintained after  the 15th August, 1947, in the Courts concerned.   The only construction which could be put upon this provision was that  the Court having appellate or revisional  jurisdiction over  that  Court  would have such jurisdiction  as  if  the proceedings had been instituted in that Court after the 15th August,  1947.   For  the purpose of the  appellate  or  the revisional jurisdiction that Court had to be treated as  the Court  in which the proceedings could and should  have  been instituted  and  it  goes without saying that  if  the  pro- ceedings   could  be  treated  as  -having   been   properly instituted in that Court the only Court to which the  appeal or  the  application for revision could lie  was  the  Court which  then  had appellate or revisional  jurisdiction  over that Court.  In the case before us no proceedings could have been  instituted in the Third Subordinate Judge’s  Court  at Alipore in respect of the properties which had gone to  East Pakistan after the 15th August, 1947.  But by reason of  the fact  that these proceedings were pending in that  Court  on the 15th August, 1947, the High Court of Calcutta which  had appellate  or  revisional jurisdiction over that  Court  was prescribed  to  be  the Court in which  the  appeal  or  the application for revision in respect of such procedings would lie,  because  that  Court, that is  the  Third  Subordinate Judge’s Court at Alipore, was treated as the Court in  which such proceedings could and should have been instituted after the 15th August, 1947. Learned  counsel for the respondents drew our  attention  to the  case of Tirlok Nath v. Moti Ram and Others(1). In  that case  a suit for possession of land at place X was filed  in Court at B in 1943.  On the 15th August, 1947, the suit  was pending  before the Court at B which dismissed the  suit  in 1948.   An  appeal from the decision was filed in  the  East Punjab  High Court as the place B was included in  the  East Punjab.  On (1)  A.I.R. 1050 East Punjab I49. 157 objection  regarding  jurisdiction of the High  Court  being taken  on  the -around that the land in suit was at  A,  now included  in  Pakistan, the High,Court held  that  the  suit



being  pending at place B on 15th August, 1947, appeal  from the decision of that Court lay to the East Punjab High Court and  not  to Lahore High Court under paragraph 4(2)  of  the Indian  Independence (Legal Proceedings) Order, 1947.   This decision is on all fours with the case before us and we  are of  the opinion that the contention urged on behalf  of  the appellants is untenable. The next contention of the appellants is equally  untenable. The  Calcutta  High Court considered these  applications  as applications in the suit for a special remedy given under  a special  law  and held that the rules of the Code  of  Civil Procedure  applied  and  an appeal lay  against  the  orders because  they were decrees within the definition of  section 2(2)  of  the Civil Procedure Code.  We cannot  accept  this reasoning.    These  applications  were  in  truth  and   in substance  applications  for execution of  the  new  decrees which  had  been passed in favour of the mortgagors  by  the High,  Court  on  the  29th  June,  1944.   The  only  thing competent  to  the  mortgagees under the terms  of  the  new decree was to apply for execution of the decrees on  default committed by the mortgagors and the applications made by the mortgagees  in the Court of the Third Subordinate  Judge  at Alipore were really applications for execution of the decree though  not couched in the proper form and could be  treated as such.  If they were treated as such it is clear that  the orders  passed  on  such  applications  for  execution  were appealable and no objection could be sustained on the ground that  no appeals law against these orders.   Treating  these applications therefore as applications for execution we  see no substance in this contention of the appellants. if  the matter is approached in this way no objection  could be urged by the appellants against the decision of the  High Court.   The executing Court could not go behind the  decree and  it is clear on the facts that default was committed  by the mortgagors both in 158 regard  to the payment of the revenue and the cess  as  also the second instalment under the new decree. The  contention which was therefore urged on behalf  of  the appellants  that  there  was no  default  committed  by  the mortgagors also could not be sustained. The  High  Court  of Judicature at  Calcutta  was  therefore rightly  seized  of the appeal and it  had  jurisdiction  to decide  whether  the  mortgagors had  committed  default  in carrying out the terms of the new decree.  The appeal  being a mere rehearing the appellate Court was entitled to  review the  judgment  of the trial Judge and declare  that  it  was wrong  and  that  the  decree-holder  was  entitled  to  re- restoration.   The  question  whether he would  be  able  to obtain  possession of the immovable properties in  fact  was foreign  to such an enquiry.  By appropriate proceedings  in another  jurisdiction  he  may be able to do  so;  but  this difficulty  could  not  be a deterrent  to  the  High  Court passing  the  necessary  orders for  re-restoration  of  the properties. The appeal therefore fails and must stand dismissed..  There will be no order as to costs.