Srimati Oramba Sundari Dasi v. Sri Sri Iswar Gopal Jieu

Mukherjea J. another co-Shebait, was appointed a Receiver of the

debutter property by the court. With the permission of the court, Ramjanaki harrowed from the same Nanitosh Chakraborty three sums of money on three different promissory notes executed respectively on the 27th Septemher, 1929, 1st October, 1929, and 14th January, 1930. The suit was eventually dismissed for non-prmecution after A,lwaita's death. Nanitosh d].-d in 1931, and i,-, 1932, his two sons Aditya and Dhirendra, who figure as respondents 14 and 15 in these appeals, instituted two money suits against Satish Chandra, t)1e managing Shebait, in the Court of the Subordinate Judge, Burdwan, being Money Suits Nos. 261 and 262 of 1932. for recovery of the moneys due in respect of the Hatchita and the promissory notes mentioned aforesaid. Both the suits were decreed ua the basis of a compromise elated the 23rd July, 1933, and two consent decrees were passed, one for a sum of Rs. 5,800, and the other for Rs. 2,200, both papble in sixteen vearly instalments with a further stipulation that in default of payment of any one of the instal-ments, the whole or balance of the clecretal amount would become clue and payable in each. The instal-ments not having been paid in either of the rnses both the decrees were put into execution. In Execu-tion Cases Nos. 76 and 77 of 1936, arising out of Money Suits Nos. 261 and 262 of 1932, the properties mentioned in Schedule Ka in each case were put up to sale and they were purchased ostensibly by the two clecrceholclers Aclitya and Dhircn. Three years bter, Execution Cases Nos. 17 and 18 of 1939 were started again in connection with the said decrees and this time the properties specified in Schedule Kha were attached and put up to sale and they were also purchased by the Chakraborty clecreeholclers. Finally in Execution Cases Nos. 163 of 1939 and 5 of 1940. the properties described in Schedule Ga were sold and thev were knocked down to Srimati Oramba Sundari 1954 Da;i, who figures as the appellant in the appeals before Srimati Oramba us and who. it may be noted, is the wife of Aghore Sundari Dasi Nath Roy, a son of Adwaita, the former managing v. Sri Sri Iswar Shebait of the debutter estate. Subsequently, the Gopal Jieu. deqeeholders, who purchased Ka and Kha Schedule Mukherjea J. properties sold them by a registered Kabala to the said Oramba Sundari Dasi on the 26th of July, 1940. The result, therefore, was that the properties described in the three Schedules came to vest in Oramba Sundari, the wife of Aghore Nath Roy. On the 28th August, 1941, the deities represented by some of the Shebaits filed two applications under section 36 (6) (a) (ii) of the Bengal Money-Lenders Act, praying for the reopen-ing of the two compromise decrees mentioned afore-said and the passing of new instalment decrees iri accordance with the provisions of the Act. There were · prayers also for restoration to the deities of all the properties mentioned in Schedules, Ka, Kha and Ga which were purchased in execution of tl1e decrees. The principal opposite parties to these proceedings were the Chakraborty decreeholders, Oramba Sundari, the ostensible purchaser, a.nd Aghore Nath Roy, her husband.

The allegations in the applications, in substance, were that the Chakrabortys were mere benamidars for Aghore Nath Roy, who was the real lender and the real decreeholder in both these suits. It was alleged that Aghore Nath Roy purchased these pro-perties in the benami of the decreeholders in two out of the three execution proceedings and in the benami of his wife Oramba Sundari in the third. The subsequent Kabala executed by the Chakrabortys in favour of Oramba Sundari was also asserted to be a fictitious conveyance made in favour of Aghore Nath Roy in the name of his wife. In these circumstances, the iudgment-debtors prayed that they were entitled to have the two compromise decrees reopened and on the passing of new instalment decrees to have the proper-ties, which were in possession of the real decreeholder.

restored to the deities in terms of section 36(2) ( c) of the Bengal Money-· Lenders Act. The trial judge decided 1954 in favour of the judgment-debtors and granted their Srimati Oramba prayers in both the applications. Orders were made

Sundari Dasi for reopening of the decrees and making of fresh

v. decrees in their places in accordance with the provi-Sri Sri lswar Gopal Jieu. sions of the Bengal Money-Lenders Act. Direction Mukherjea J. was also given for restoration of the properties men-

tione,d in Schedules Ka, Kha and Ga to the deities under the provision of section 36(2) (c). Against this decision, Oramba Sundari took two appeals to the High Court of Calcutta and the learned Judges, who heard the appeals, affirmed the decision of the court below and dismissed both the appeals. Oramba Sundari has now come up in appeal to this court on the strength of a certificate given by the High Court under sections 109 (a) and llO of the Civil Procedure Code.

Mr. Chatterjee, who appeared in support of the appeals, has not challenged before us the findings of fact concurrently arrived at by the courts below, viz., that the appellant Oramba Sundari was a mere benamidar for her husband Aghore in respect of the purchase of Ga Schedule properties in court sale, and also that the Kobala executed by the Chakrabortys in her favour on July 26, 1940, was a fictitious transaction. The point, which he has pressed for our consideration, is that in a proceeding under section 36 of the Bengal Money-Lenders Act, it is not open to the court to go behind the decree and launch an enquiry as to whether the decreeholders on record were in fact benamidars for another person. In other words, the contention is that, even if Aghore was proved to have advanced the money upon which the Chakrabortys obtained the decrees, in reopening the decrees and in working out the rights of the parties in accordance with the provi-sions of the Bengal Money-Lenders Act, the court could treat the Chakrabortys alone as the decree-holders. For a proper determination of this point, it is necessary to examine the scope of section 36 of the Bengal Money-Lenders Act and the reliefs which the court is competent to grant in terms of that section. '

Section 36 of the Bengal Money-Lenders Act sets out the various powers which the court can exercise, if it has reason to believe that the exercise of one or 1954 more of the powers will give relief to the borrower as Srimati Oramba contemplated · by the Act; and one of the powers, Sundari Dasi which is mentioned in clause (a) of sub-section (1) of v. Sri Sri Iswar the section is to reopen any transaction and take an Gopal -" Jieu. account between the parties. The drafting of section 36 MukherJea J. is indeed obscure and somewhat clumsy, but it is dear, as the Privy Council(') has pointed out, that the power of reopening a transaction, as contemplated bv the section, extends to reopening of decrees as well.

Sub-section (2) of section 36 contains detailed provi-a sions as to what the court may or may not do when decree is reopened. It cannot be disputed that the court reopens a decree under section 36(2) only for the purpose and so far as it is necessary to give relief to the borrower in the manner provided for in the Act, namely, to release him from all liability for interest in excess of the limits prescribed by section 30 of the Act. A new decree is passed only for the purpose of substituting the method of accounting sanctioned by the Act for the calculations upon which the original decree was passed and to give an opportunity to the judgment-debtor to pay the decretal dues thus ascer-tained by instalments. But save and except for these, the old decree as well as the adjudications made there-under are not wiped out and the parties are not rele-gated to their rights and liabilities under the original cause of action('). How the rights of the parties are to be ad justed and worked out when a decree has been reopened has been dealt· with exhaustively in the several dauses of section 36 (2) of the Bengal Money-Lenders Act, and an examination of these clauses makes it clear to our minds that an enquiry as to whether the decree-holder was in fact a benamidar for another person in respect of the decree, does not come within the purview of these provisions. Clause (a) of section 36(2) empowers th~ court to pass a new decree in accordance with the provisions of the Act. Obviously, this new decree is to be passed in favour of the original decree-holder and only the calculations upon which the old

(1) Vide Rettula v. Manmat!1a, 72, I. A. 156.

(2) Vide Bank of Commerce Lid. v. Amulya KriJhna Basu Rqy Chow-dhury F. C. R. 126.

1954 decree was based would be changed by substituting Srimati Oramba the statutory method of accounting in place of what

Sundri Dasi rested upon the contract between. the parties.

v. Clauses (b) and (c) contemplate cases where properties Sri Sri Iswar Gopol Jieu. have been sold in execution of the original decree. If Mukhei:iea J. the purchaser is the decreeholder himself and he is in

possession of the property when the decree is reopened, it is incumbent upon the court to order restoration of these properties to the judgment-debtor under clause (c). If, on the other hand, the properties had been acquired by strangers either by purchase at the execution sale or from the decreeholder purchaser, their interests would be protected if they have acquired these rights bona fide as contemplated by clause (b ). Under clause (cl), the court has to order the payment of the decreetal amount in such instalments as it thinks proper, and clause ( e) further imposes a duty on the court to give a direction in such cases that if there is default in the payment of any one of the instalments, the properties restored to the judgment-debtor under clause ( c) would be put back into the possession of the decreeholder. It is quite true that the object of restoring possession of the properties sold in execution of the decree to the judgment-debtor is to enable the latter to pay off the decretal dues, but it is to be remembered that the sale itself is not annulled, and in case of default in payment of any of the instalments, the properties are returned to the decreeholder purchaser. We agree that if the purchaser is a mere benamidar for the decreeh0lder, clause (b ), sub-section (2) of the section would not afford protection to him in any way. He could not be regarded as a person other than the decreeholder acquiring rights bona fide as contemplated by that clause. For the purpose of giving effect to clauses (b) and ( c), there-fore, the court has not only the right but is under a duty to make an enquiry as to whether the ostensible purchaser at the execution sale, or the person who purports to have acquired an interest therein under a subsequent transfer from the decreeholder purchaser, has bona fide acquired such rights within the meaning of clause (b). But we do not agree with the learned Judges of the High Court that in making a new decree 1954 under clause (a) of section 36(2) and giving the Srimati Oramba judgment-debtor consequential relief under clause ( c) Sundari Dasi of . the sub-section, the court can at all enter into the v. Sri Sri lswar question as to whether the decreeholder on record is Gopal Jitu. himself a benamidar for another person in respect of Mukherjea J~ the decree. Such enquiry, it seems to us, is altogether outside the purview of the different clauses of sec-tion 36(2) of the Bengal Money-Lenders Act. These provisions do not recognise any other decreeholder than the one in whose favour the original decree was passed.

It is between him and the judgment-debtor that the rights ate to be adjusted in accordance with the provi-sions of the Act; to him would the instalments have to be paid under the new decree, and he alone would be compelled to restore the properties which he had pur-chased in execution prdceedi.ngs. None but the decree-holder on record can give a valid discharge or record satisfaction of the decree. This being the position, it is altogether immaterial, in our opinion, that it was Aghore, the husband of the appellant, who really advanced the money upon which the decrees were obtained. We must treat the Chakrabortys and the Chakrabortys alone as the decreeholders and see to what extent the provisions of the Act could be applied against them in· the circumstances of the present case.

So far as the properties described in Schedules Ka and Kha ate concerned, it is not disputed that they were purchased by the decreeholders themselves. No price was actually paid by the decreeholders, but the sale proceeds were set ·off against the decretal dues. The decreeholders, therefore, must be deemed to be the purchasers of these properties within the meaning of clause ( c) of section 36(2); and as the subsequent con-veyance of these properties in favour of Oramba Sundati, the appellant, has been held by both the courts below . to be a fictitious transaction, we must hold that 0Iamba Sundati did not bona fide acquire my right which could be protected under clause (b) of section 36a). With regatd to these properties, there-fore, the order for restoration of possession made by both the courts below should stand. As regards Ga:

5-97 S. C. India/59

1954 Schedule properties, however, Oramba Sundari was Srimati OramlitJ the purchaser at the execution sale and whether or Sundari Dasi not the money for such purchase was paid by her

v. husband becomes immaterial. This was not the pro-Sri Sri Iswar Gopal .7itu. perty purchased by the decreeholders and there is no Mukhtlj1a ]. proof of the decreeholders being in possession of the

same either by themselves or through Oramba Sundari. In these circumstances, clause (c) of section 36(2) can-not be attracted in favour of judgment-debtors so far as this property is concerned and the possession of it must remain with the appellant. We, therefore, allow the appeal in part and set aside the order for restora-tion of possession made by the courts below in respect to the Ga Schedule property. The rest of the decision of the High Court will stand. We make no order as to costs of these appeals.

A pp(a/ partly allo1ud.

THE STATE OF RAJASTHAN

1954 v.

March 15. RAO MANOHAR SINGHJL

[MEHR CHAND MAHAJAN C. J., MuKHJ'.RJEA, S. R. DAs,

VIVIAN BosE and GHULAM HASAN JJ.]

Constitution of India, art. 14-Section 8-A of Rajasthan Ordinance XXV/l of 1948 as amended-Whether ultra vim the Const£tutiQn.

Held, that s. 8-A inserted in Rajasthan Ordinance XXVII of 1948 by s. 4 of Rajasthan Ordinance X of 1949 and as amended by s. 3 of Rajasthan Ordinance XV of 1949 is void under art. 14 of the Constitution.

Frank f. Bowman v. Edward A. Lewis (101 U.S. 22; 25 Law. Ed. 989), Ramjilal v. Income Tax Officer, Mohindargarh ([1951] S.C.R. 127), The State of Punjab v. Ajaib Singh ([1953] S.C.R. 254) and Thakur Madan Singh v. Collector of Sikar (Rajasthan Law Weekly, 1954, p. 1), referred to.

CIVIL APPELLATE JuRismcnoN : Civil Appeal No. 143 of 1952.

Appeal under article 132(1) of the Constitution of India from the Judgment and Order, dated the