HARIDAS MONDAL versus ANATH NATH MITTRA.

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 by no stretch of imagination be considered enteri~g into any" agreement or compromise."

Das Gupta J.

-

• •

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- 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.

v,h M.

A

I96I .

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 sta11tive provisions of the Act.

CrvIL APPELLATE

No. 508 of 1957.

Ju:arsDICTION: Civil Appeal

Appeal by special leave from the judgment a.nd decree dated June 3, 1955, of the Calcutta. High Court in Appeal from Appellate Decree No. 1090of1949.

N. C. Chatterjee a.nu D. N. Mukherjee, for the a.ppel

la.nt.

B. C. Panda a.nd P. K. Chatterjee, for the res·

pondent,

882

SUPR~ME COURT REPORTS

(1961]

1961. February 21. The Judgment of Kapur and H~•idas Mondal Shah, JJ. was delivered by Shah, J. Hidayatullah, J.

v..

delivered a separate judgment.

Shah j.

'""'"Nath Mitt.a SHAH, J.-To 'secure repayment of Rs. 2,500/- Anath Nath Mittra-hereinafter referred to as Mittra-mort gaged fonr parcels of land to Haridas Mondal- hereinafer referred to as Mondal-hy deed dated April 25, 1930. Monda! filed suit No. 18 of 1937 on Juno 11, 1937, for enforcement of the mortgage in the Court of the 2nd Subordinate Judge, Midnapore, and obtained a prelimiµary mortgage-decree for Rs. 5,000/ and interest and costs. This decree was made absolute and in execution of the decree, the mortgaged pro perty was sold for Rs. 4,160/- and an amonnt of Rs. 2,176-6-6 ont of the decretal amount remained due and pli.yable under the mortgage decree. Out of the four parcels of land sold, three were purchased by Monda! and the remaining was purchased by Mittra's wife. Monda! then applied for a personal decree under 0. 34, r. 6 of the Civil Procedure Code and obtained on September 7, 1940, a decree for payment of Rs. 2,338-15-0 against Mittra. Monda] then applied for executing the personal decree by Misc. Execution In the meanwhile, the Bengal Case No. 11 of 1941. Legislature enacted the Bengal Money -lenders Act, 1940, which enabled the courts in certain circum stances to reopen. decrees already passed. Availing himself of this Act, Mittra filed a suit under s. ::!6 of tho Bengal Money-lenders Act for an order reopening the personal decree. By order dated August 16, 1941, the Subordinate Judge, Midnapoxe, decreed the. suit and directed that a new decree for Rs. 1,431-15-0 be drawn up and tha,.t the amo.unt due under the persona.I decree be pa~d in three annual instalments. Against. this decree, an agpeal wa.s preferred to the District Court, Midnapore:.. The District Judge dism.issed the appeal a.nd all0;wed the cross,objections filed by Monda!. In Sec0 nd Appeal No. 1442 of 1942, the. High Court of Judicature. at Calcutta. set aside. the. decNe of the District Judge and rest•ired the. decree of the Subordin.a.te Judge, 2nd Court, Midnapore. Mittra did not pay the a~onnt as directed under the

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~ S.C.R. SUPREME COURT REPORTS

883

.

''"'

· Shah J.

new decree and Monda! applied for executing the decree. Mittra then filed another suit under s. 36 H of the Bengal Money-lenders Act in the 2nd Court of •nd•:.Mo>1dat the Subordinate Judge, Midnapore, for reopening the Anath Nath Miura decrees preliminary and final passed iD the mortgage suit. The Subordinate Judge dismissed this suit as it was, in his view, barred as res judicat.a. In appeal to the District Court, the decree was confirmed. But the High Court in Seco.nd Appeal ordered that the preliminary and final decrees be reopened and the case be remanded to the trial court for passing a. fresh. preliminary decree. Against the said decree of the High Court, this appeal is filed with special leave. Section 30 of the Bengal Money-lenders Act, 1940, provides in so far as it is material that notwithstand ing anything contained in any law for the time being in fore(), or in any agreerr.ent, no borrower sha.l! be liable to pay after the commencement of the Act a. sum in respect of principal and interest which, together with any amount already pa.id or included in any decree in respect of a. loan exceeds twice the principal of the original loan and that the borrower shall not be liable to pay interest at rate per annum in cases of secured loans exceeding 8 per cent. simple. By s. 36, the liability on loans secured or otherwise which contravenes the provisions of s. 30 is liable to be reopen~d. It is provided by sub-s. (1) of s. 36 in ~o far as it is material that notwithstanding anything contained in any law for the time being in force, if in any suit brought by a borrower for relief under this section whether heard ex.parte or otherwise, the court has reason to believe that the exercise of one or more of the powers under the section will give relief to the borrower it shall exercise all or any of the powers specified therein as may be considered appropriate. The court is invested with the power of reopening t~a.nsactions including taking of accounts be.t'il'.een the parties, of releasing the borrower of ~II liability in e:"tcess of the limits specified in els. (1) and (2) o~ s.30 and of setting aside either wholly or in part, or of revising or a.haring any security given or. a.greement made in respect of any loan. Eii:ercise of these po'l'l'.ers

"~

884

SUPREME COURT REPORTS

[1961]

6 '

'9

Shah J.

Haridas Monda/ v.

is subject to the provisos which are not material for the purposes of this appeal. By sub-s. (2), the court reopening a decree is prohibited from doing anything Anath Nath Miura which affects the rights acquired b<ma fide by any person other than the decree-holder in consequence of the execution of the reopened decree; but is enjoined to order the restoration to the judgment-debtor of such property, if any, of the judgment-debtor acquired by the decree-holder in consequence of the execution of the reopened decree as may be in the possession of the decree-holder on the date on which the decree was reopened and also to order the judgment-debtor to pay to the decree-holder in such number of instal ments &s it may think fit, the whole amount of the new decree passed under cl. (a). The court is further. enjoined to direct that in default of payment of any instalments, the decree-holder shall be put into p9sses sion of the property which has been restored to the judgment-debtor and that the amount for which the decree-holder purchased such property in execution of the reopened decree shall be set off against so much of the amount of the new decree as remained.unsatisfied. Sub-section (6) provides that notwithstanding any thing contained in any law for the time being in force, the court which, in a suit to which the Act applies, passed a decree which was not fully satisfied by the first day of January, 1939, may exercise the powers conferred by sub-ss. (1) and (2) in any proceeding in execution of such decree. Section 36, sub-s. (1), · contemplates the institution of a suit by a borrower for relief under that section and the court is thereby invested with the power of reopening decrees already passed.

.

·

Mittra. in the year 1941 filed the suit under e. 36 of the Act for reopening the persona.I decree passed under O. 34, r. 6 of the Civil Procedure Code. In Schedule " A" to the plaint, he sej out the principal a.mount due under the mortgage, the interest at the rate of 8% due thereon from the date of the mortgage till the date of the suit, costs of the suit, a.nQ: after giving credit. for the price realised by sale of the properties, he submitted that Monrlal was entitled to

•

3 S.C.R.

SUPREME COURT REPORTS

885

0

"

'96' a M dal

recover only Rs. 66-13-2 and that Monda! should be declared entitled to that amount in twenty annual instalments. By a suit under s. 36, Mittra undoubt- Har> as edly was entitled to reopen the preliminary decree, Anath N":.ih Miura decree absolute for sale and also the personal decree ; but in the first suit, he gave up his right to reopen the preliminary decree and the· decree absolute for sale, and was content to obtain an order that the personal decree alone be reopened. In the execution under the mortgage decree one parcel of land was purchased by Mittra's wife and it is presumably on account of this circumstance that Mittra was unwilling to have the preliminary decree reopened. The District Judge, Midnapore, who heard the appeal against the order ·passed by the 2nd Court of the Subordinate Judge in

Shah J.

the first suit under s. 36 of the Act observed :

" It is admitted before me by the learned pleader for the appellant that the reopening of the entire transaction.will not be to J;he benefit of the appel lant and the latter, therefore, does not want this to be done. The only relief he claims is that the new decree passed by the learned Subordinate Judge for Rs. 1,431-15-0 shall be reduced to Rs. 66-13-2 as mentioned in his application under s. 36 of the Act." In the first suit under s. 36 filed 'by Mittra, the claim to reopen the preliminary decree and the decree absolute was deliberately abandoned and he obtained relief expressly on the footing that he did not desire that those decrees should be reopened. Is it thereafter open to Mittra to file another suit for obtaining relief under s. 36 by reopening the preliminary decree and the decree absolute ? In our judgment, s. 36 contem plates filing of one suit and not successive suits for reopening transactions including decrees and obtain ing relief under the Act. If in a suit filed for that pur pose, a borrower 'does not obtain relief which he has asked for or abandons his right to relief, in our judg ment it will not thereafter be open to him to institute a second suit for relief which could have been but was not claimed in the earlier suit.

The plea that in the previous suit it was not open to Mittra to make a claim for reopening the

886

SUPREME COURT REPORTS

[1961]

on •

Shah J.

'-{96i: ·. ·

prelimiµary decree and the decree absolute is without if aa M d: i substance. By sub-s. (6) of s. 36, the right to grant relief in proceedings in execution· of a decree already "". : Anath Na;h .M111ra passed but whiCh is not satisfied is vested in the court passing the decree and the first suit under s. 36 was filed in the court which had originally passed the · mortgage decree. · The claim' to reopen the decrees preliminary and final was abandoned not because the corirt was incompetent to grant relief but because l'rlittra did not at that stage desire to reopen those - decrees; • We are iiriable io agree with the High Court that to 8.. siiit. under 5, 36 of the Act, the rule con' tamed in 0. 2,·r. 2 of the Code of Civil Procedure does \Ve are also of the view that the right to hot apply, Claim relief which could have been but has not been asked for in the previous suit must ·be regarded as res judicata..

. : . . .

.· .

-- -

· _.

1

. . In that view of the ease, this •appeal will be allowed and l'rlittra's suit No. 105 of 194 7 dismissed with costs throughout. . Hii>AYATULLAH, J.-I have had the advantage of reading the judgment . just delivered -by. my brother, - Shah, J,; but I regret my inability to agree that the judgment under appeal be reversed.·. ·

. -

, -

·

The appellant, a money,lender, had advanced a sum of Rs. 2,500/' to the respondent on a. simple mortgage · of four properties. He filed a suit which ,was decreed ori November 13, 1937, when a preliminary decree for Rs, 5,000/• plus costs was passed ag:iinst the respond ent •. This. decree was made final on February 25; 1938. On May. 17, 1939, the four properties were sold for Rs. 4,160/•, arid the balance then remaining due was Rs. 2,176/-. Three of the properties were purchased by th.El appellant (decree-holder), and the fourth; by the

-- wife of the· mortgagor;_ . .

.

On September 7, 1940, a personal decree

for Rs. 2,338-15-3 was passed against the respondent. In 1941, execution of that decree was taken out. •. In the meantime, the Bengal Money-lenders Act had come . into force on August I, 1940. The respondent there upon made an application under s. 36 of the Bengal Money-lenders Act for reopening the decree. The

HidayaMla'ttj.

••

a s.c.:R. SUPREME GOURT REPORTS

SS7

hJ6z

rilspolldellt did not say which tlecreil he wantetl re- opelled; but with his applicatiOll he gave a statement Ha.idas Mond.il· of account of the entire amount as reduced under the Bengal M:oney,Jenders Act and by the amount realised Anath Naih Mitt• by sale of the four properties; and asked that a decree for the balance; Rs. 66-13,2, should be passed against Hidayatullah J; him •. The application was partly allowed, and a fresh decree for Rs. 1,431-15-0 was passed. If the earlier decrees had heell reopened, the amount due would have been Rs. 5,591-15-0, but the Subordinate Judge said :

. _ . -- .

v.

"As Rs. 4,160/- was paid, I find no necessity of cahcellillg the sale and ordering restitution, but for the balance Of Rs. l,431,15-0, a new decree be drawn tip."

The :respondent appealed, antl the appellant cross objected. The District Judge dismissed the appeal, a.Howed the cross-objection, and disiliissed the applica tion. On appeal to the High Court by the present respondent, R. C. Mitter, J. allowed the appeal. He held that the personal decree was liable to be reopened, alld restored the decree for Rs. 1,431-15-0 passed by the Subordinate Judge.

The respondent who was directed to pay the amount by instalments under the orders of Mitter, J. made default in payment, and a money execution case was started against him. He; thereupon, brought a suit under s. 36 of the Bengal Money-lenders Act for reopening the pteliminaty, final and personal decrees. This 1mit was dismissed as barred by (lonstructive res judicata and the principle of 0. 2, r. 2 of the Code of Civil Procedure, by the Subordinate Judge, and the appeal to the District Judge also failed. On further appeal to the High Court, K. C. Das Gupta, J. (as he then wa.s) and Guha, J. allowed the appeal. The learned Judges held that 0. 2, r. 2 of the Code of Civil Procedure did not apply to the suit, because it refers to a. previous suit and not to an application filed in execution for relief. They also pointed out that •mder the Bengal Money-lenders Act the duty was laid upon the Court to reopen any decree, if it was likely to give relief to the borrower, and that the relief did not

888

SUPREME COURT REPORTS

[1961]

••

i96i

depend .upon the desire or claim of the borrower. They HMidas Mondal further pointed out that even Mitter, J. was of the opinion that the relief to be given was incumbent bath N••h Miltra upon the Court and independent of the wishes of the

v.

borrower.

Hidayatullah J.

In the appeal before us filed with special leave, Mr. N. C. Chatterjee contended that the suit was barred by res judicata, waiver and estoppel; and that the Divisional Bench of the High Court was in error ill ordering the reopening of the three decrees; when the respondent himself had not asked on the earlier occasion that they be reopened.

The scheme of the Bengal Money-lenders Act is as followJ: The Act, though passed to control mon·ey lenders and to regulate and control money-lending, gave relief to borrowers in many ways. One such way was to put the limit of what is popularly known it.s Damdupat on interest, and another was .to limit the rate of interest to 8 per cent. simple in the case of secured loans. By s. 36, transactions which contravened ·these provisions were required to be rnopened. This reopen ing was not; limited to transactions, but. decrees also were required to be reopened, unless fully satisfied by the first day of January, 1939. The section gave'vast powers to Courts reopening decrees. Sub-section (2) .of s. 36 provided :

,

" (2) If in exercise of the powers conferred by sub-seQtion (1) the Court reopens a decree, 'the Court-

( a) shall, after affording the parties an opportu nity of being heard, pass a new decree in accordance with the provisions of this Act, and may award to the decree-holder such costs in respect of the.re · opened decree as it thinks fit, (b) sh8.ll not do anything which affects any right acquired bona fide by any person, other than the decree-holder, in consequence 9f .the execution of the reopened decree,

(c) shall order the restoration to the judgment. debtor of such pra~rty, if any, of the judgment debtor acquired by the decree-holder in consequence of the execution of the reopened decree as may be in-

.

3 S.C.R. SUPREME COURT REPORTS

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the possession of the decree-holder on the date on which the decree was reopened,

r96r

{d) shall order the judgment-debtor to pay to the Haridas Mondal decree-holder, in such number of instalments as it Anath N:;h Miltra may think fit, the whole a.mount of the new decree passed under clause {a), and

Hidayatullah ].

{e) shall direct that, in default of the payment of any instalment ordered under .clause { d ), the decree holder shall be put into possession of the property referred to in clause { c) and that the a.mount for which the decree-holder purchased such property in execution of the reopened decree shall be set off against so much of the amount of the new decree as remains unsatisfied. " The stages at which decrees could be reopened were Ia.id down by sub-ss. {l)and (6) ofs. 36. Sub-section (I) provided:

" N otwithsta.nding anything contained in any law for the time being in force, if in any suit to which this Act applies, ·or in any suit brought by a borrower for relief under this section whether heard ex parte or otherwise, the Court has reason to believe that the exercise of one or more of the powers under this section will give relief to the borrower, it shall exercise all or any of the following powers as it may consider appropriate, ... "

Sub-section (6) provided :

"Notwithstanding anything contained in any law

for the time being in force,-

{ a) the Court which, in a suit to which this Act applies passed a decree which was not fully satisfied by the first day of January, 1939, may exercise the powers conferred by sub-sections (I) and {2)-

(i) in any proceedings

in execution of such

decrl'e, or

{ii) on an application for review of such decree ma.de within one year of the date of commencement of this Act, and the provisions of rules 2 and 5 of Order XL VII of the First Schedule to the Code of Civil Procedure, 1908, shall not apply to any such application;

'

890

SUPREME COURT REPORTS

[1961]

.,

Haridas Mondal v. Anath Nath Mittra

Hidayat"4llak J.

(b) any Court before which an appeal is pending in respect of a decree referred to iu clause (a) may either itself exercise the like powers as may be exercised under sub-sections (1) and (2), or refer the case to the Court which passed the decree directing such Court to exercise such powers, and such Court shall after.exercise thereof return the record with the additional evidence, if any, taken by it and its findings and the reasons therefor to the Appellate Court and thereupon the provisions of rule 26 of Order XLI of the First Schedule to the Code of Civil Procedure, 1908, shall apply."

The words "suit to which this Act applies" were defined to mean :

"2 (22) ...... any suit or proceeding instituted or filed on or after the 1st day of January, 1939, or pending on that date and includes a proceeding in execution-

( a) for the recovery of a loan advanced before or

after the commencement of this·· Act;

(b) for the enforcement of any agreement entered into before or after the commencement of this Act, whether by way of settlement of account or other wise, or of any security so taken, in respect of any loan advanced whether before or after the com mencement of this Act; or

(c) for the redemption of any security given before ·or after the commencement of this Act in respect of any loan advanced whether before or after the commencement of this Act. "

Bys. 2(21), "suit" included an appeal. The definition was still further widened for purposes of s. 36 [ vide sub-s. (3)] ; but nothing turns on it.

The effect of these provisions may be summed up: The reopening of transactions and decrees could be achieved:

- (a) in any suit to which the Ac.t applied; (b) in a suit brought by the borrower for relief

under s.-36;

( c) in any proceeding in execution of decrees ; (d) by an application for review of'Th·decree made within qne year of the d&te of oommencement of the Act; and

•••

,.

3 S.C .. R

SUPRE:ME COURT REPORTS

891

(e) by a.ppella.te Courts a.t a.II the above stages.

r96L.

Onoe the Court wa.s moved, the aotion of 'the Court Haridas Mond•l wa.s dictated by the Act, and the Court was compelled by the Aot to give full relief. The Court in this case Anath Nath Mitt•• wa.s required by la.w to reopen a.II the decrees passed age.inst the respondent. Irideed, R. C. Mitter, J. quite Hlday•l•l/ah J. correctly pointed out :

v.

"In this oase the judgment-debtor was entitled to ha. ve all the decrees, namely, the preliminary, final a.nd the personal decrees reopened. He should not ha. ve been refused relief simply because he had asked for the reopening of the personal decree only if there ha.d been a contravention of the provisions of seotion 30 of the Bengal Money-lenders Aot." The learned Judge, however, declined to remand the case for the application of the Act or even to apply it himself, because he felt that ·what was asked for by .the respondent should at least have been granted, and he granted only that relief. The law, however, gave no such option. It wa.s mandatory, and laid a duty upon the Court.

The respondent then filed a suit, and asked for all the reliefs which the Court had to award, and there oa.n be no doubt that unless the suit be incompetent, the Act must be applied even now, because the volition of the borrower is entirely out of place in the a.pplica. tion of the Act. The respondent no doubt, when he applied on the previous occasion, asked that the Act be applied only so far as benefited him; but his wishes were irrelevant, and the Act ha.d to be applied, as it stoqd. Every one who has dealt with this case ha.s felt this to be the true position in law. ·

Thus, the question is whether the respondent was precluded from bringing the suit. The suit could be barred under s. 11 or 0. 2, r. 2 of the Code of Civil Procedure, or by the application of the principle of constructive resjudicata, or because of waiver, estoppel or the equitable principle of approbation and reproba tion. The opening words of sub-s. (1) and again of sub-s. (6) of s. 36 a.re :

"Notwithstanding anything contained in a.ny 1111'\f

for the time beins in foroe ",

"t

892

SUPREME COURT REPORTS

[1961]

••

1

61 9

v.

and they are apt to put out of consideration both Haridas Mondal: s. 11 and O. 2, r. 2 of the Code of Civil Procedure. Waiver and the equitable doctrine of approbation and Anath Nath Mittra reprobation can apply only if a right were give up. They can have no application where the question is Hidayatullah J. not so much of a right of a party as of the duty of a Court under the Act. The Court was.moved, and had to do its duty. If it can be moved a second time by another proceeding, neither those principles nor the principle of constructive res judicata can apply.

The remedies which are enjoined by the Act are not exclusive of one another, either expressly or by neces sary intendment. As tile law stands, the Court could take action t0 enforce it at almoHt any stage of the proceedings between the parties commenced by the creditor, and, in addition, in proceedings or a suit commenced by the borrower. The intention of the law is clear and manifest that borrowers must be pro Indeed, in Jadunath Roy v. Kshitish Chandra tected. Achariya Choudhury('), the Judicial Committee hflld that the preliminary, the final an.ii the personal decrees in a suit to enforce a simple mortgage were all con nected and were, in effect, one decree only, and there could be no question of reopening one decree and not the others. And in Joy Chand Lal Babu v. Kamalaksha Choudhury('), a consent decree in a mortgage suit, which combined the preliminary, the final and the personal decrees into one decree, was held to be properly reopened. The decrees passed against the respondent were required by Jaw to be reopened, and no provision of the Code of Civil Procedure or o.f eqity could bar the suit. The first was excluded expressly, and equity was hardly applicable in view of the Jaw on the subject. Indeed, by the suit even the decree of Mitter, J. could be reopened, if it did not comply with the law.

In my opinion, the order of t.he Divisional Bench of the Calcutta High Court, with respect, is correct, and to hold otherwise is to decline to give effect to the protection, which the Act has oedulously erected in

(z) (194(_1) I.. H, 7~' I.A. 131.

,,

3 S.U.R.

SUl'RElllE COCRT HEPOHTS

893

favour of borrowers an'.! against rapacious money lenders. I find myself in such complete agreement with the judgment impugned, that I do not find it necessary to cover the same ground.

Harida5 .J!Ondal v. Anath ,,Vath 1.llittra

I .would, therefore, dismiss the appeal with costs. BY COURT.-In view of the majority judgment of the Court, this appeal will be allowed and Mittra's Suit No. 105 of 1947 dismissed with costs throughout.

Hidayatullah j.

FebYuary 21,

THE COMMISSIONER OF INCOME-TAX, BOMBAY v. M/s. FILMISTAN LTD. (J. L. l(APUR, M. HIDAYATULLAH and J. c:SHAH, JJ.)

focome-tax-J'cnalty for failure to pay tax-Appeal within time -Tax due paid after the period of Limitation--Appral if barred Indian Income-tax Act, r922 (II of r922), ss. 30, sub-ss. (I) and (2), 46(I).

Against an order imposing penalty under s. 46(1) of the Indian Income-tax Act on account of failure to pay an instalment of Income-tax, an appeal was preferred. Though the memoran dum of appeal was presented within the period of limitation, the limitation prescribed for tax was paid after the period of presenting the appeal had expired.

Held, that the expression "t-<o appeal shall lie" in the proviso to s. 30(2) of the Indian Income-tax Act means that the appeal cannot be held to be properly filed until the tax is paid, and not that no memorandum of appeal may be presented.

The effect of proviso to s. 30, sub-s. (r) read with sub-s. (2) ...of the Act is that the appeal will be deemed to be filed on the date when the tax due is paid and the question will then have to be decided whether there is sufficient cause for condonation of delay.

CIVIL APPELLATE

JURI8DIUTIO:\ : Civil Appeal

No. 451 of 1960.

Appeal from the judgment and or<lcr dated Septem ber 18, 1957, of the Bomu>1y High Court in I.T.H.. Ko. 8 of 1957.

/{. N. Rujar;opol s,1,1n: a11d

/J. Unpta. fu,.

the

appell<tnt.