{"id":253732,"date":"1951-05-04T00:00:00","date_gmt":"1951-05-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kumar-pashupatinath-malia-vs-deba-prosanna-mukherjee-on-4-may-1951"},"modified":"2017-10-27T22:47:58","modified_gmt":"2017-10-27T17:17:58","slug":"kumar-pashupatinath-malia-vs-deba-prosanna-mukherjee-on-4-may-1951","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kumar-pashupatinath-malia-vs-deba-prosanna-mukherjee-on-4-may-1951","title":{"rendered":"Kumar Pashupatinath Malia & … vs Deba Prosanna Mukherjee on 4 May, 1951"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Kumar Pashupatinath Malia & … vs Deba Prosanna Mukherjee on 4 May, 1951<\/div>\n
Equivalent citations: 1951 AIR 447, 1951 SCR 572<\/div>\n
Author: S R Das<\/div>\n
Bench: Das, Sudhi Ranjan<\/div>\n
           PETITIONER:\nKUMAR PASHUPATINATH MALIA & ANOTHER\n\n\tVs.\n\nRESPONDENT:\nDEBA PROSANNA MUKHERJEE.\n\nDATE OF JUDGMENT:\n04\/05\/1951\n\nBENCH:\nDAS, SUDHI RANJAN\nBENCH:\nDAS, SUDHI RANJAN\nKANIA, HIRALAL J. (CJ)\nSASTRI, M. PATANJALI\n\nCITATION:\n 1951 AIR  447\t\t  1951 SCR  572\n\n\nACT:\n     Bengal  Money Lenders Act (X of 1940), ss. 2  (22),  36\n(5)--Relief  under s. 36--\" Suit to which this\tAct  applies\n\"--Suit in which execution proceeding was pending on Jan. 1,\n1939--Execution Case struck off but attachment continuing in\nforce on Jan. 1, 1939--Applicability of Act----Civil  Proce-\ndure Code (V of 1908), O. 21, r. 57--Striking off  execution\ncase keeping attachment in force--Whether terminates  execu-\ntion  proceeding--Sub-mortgagee--Whether assignee  of  mort-\ngage--Right to claim protection under s. 36 (5).\n\n\n\nHEADNOTE:\n     A decree on a mortgage was passed in a suit brought  by\nthe  representatives in interest of a sub-mortgagee in\t1929\nand  a personal decree for recovery of the amount  remaining\ndue after the sale of the mortgaged properties was passed in\n1935.\tIn 1936 the decree-holder started execution  of\t the\npersonal  decree  and  attached certain\t properties  of\t the\njudgment-debtor.   The\tdecree-holder filed  a\tpetition  on\nJanuary\t 30, 1937, praying that the execution case  \"may  be\nstruck\toff for non-prosecution, keeping the  attachment  in\nforce\" in view of certain negotiations for amicable  settle-\nment, and the court passed an order that the execution\tcase\n\"is dismissed for non-prosecUtion, the attachment\n573\nalready effected continuing\". On June 2, 1939,\tthe  decree-\nholder\tfiled  a petition stating that the decree  had\tbeen\nadjusted  and  attachment  may\tbe  withdrawn.\t The  Bengal\nMoney-lenders Act came into force on September 1, 1940,\t and\non  January 2, 1941, the legal representatives of the  judg-\nment-debtor filed a suit under s. 36 of the Act praying\t for\nre-opening the transactions. The question being whether\t any\nproceeding for execution was pending on or after January  1,\n1939,\twithin\tthe meaning of the definition of \"a suit  to\nwhich this Act applies\" contained in s. 2 (22) of the Bengal\nMoney-lenders Act:\n    Held,  per\tKANIA  C.J. and DAs J.--That  the  order  of\nJanuary 30, 1937, was in form and in substance a final order\nof dismissal of the execution petition of 1936. The  attach-\nment  continued\t not because there was a  pending  execution\nproceeding  but because a special order for  continuing\t the\nattachment  was made under O. 21, r. 57 of the Civil  Proce-\ndure  Code as amended by the Calcutta High Court,  and\tnot-\nwithstanding  the  fact that the  attachment  was  continued\nthere  was  no execution proceeding pending  on\t January  1,\n1939,  and accordingly the decree sought to be reopened\t was\nnot  one passed in \"a suit to which the Act applies\"  within\nthe  meaning  of s. 2 (22) of the Act and the Court  had  no\npower  to  re-open the transactions under s.  36   (2).\t The\npetition  of  June 2, 1939, was also not  a  proceeding\t for\nexecution  but a mere certification by the decree-holder  of\nsatisfaction of the decree.\n    PATANJALI  SASTRI J.--The continuance of the  attachment\nnotwithstanding\t the  dismissal of the\texecution  petition,\nindicated  that\t the proceeding which had  resulted  in\t the\nattachment was kept alive to be carried forward later on  by\nsale  of  the attached property.  Attachment  itself  is  \"a\nproceeding  in\texecution\" and so long as it  subsists,\t the\nproceeding in execution can well be regarded as pending.  In\nthis  view a proceeding in execution was pending on  January\n1, 1939, and the decree must be taken to have been passed in\n\"a  suit to which this Act applies \".  But inasmuch  as\t the\nsub-mortgage  to the respondent's predecessor in  title\t was\nbona fide and he obtained by virtue of the sub-mortgage\t the\nright  to  sue the original mortgagor for  recovery  of\t the\nmortgage  debt, the decree-holder was a bona  fide  assignee\nand his claim for the entire decree debt was protected by s.\n36 (5) of the Act.\n    Renula  Bose v, Manmatha Nath Bose (L.R. 72\t I.A.  156),\nPromode\t Kumar Roy v. Nikhil Bhusan Mukhopadhya\t (50  C.W.N.\n407)  and  Prom ode Kumar Roy v. Nikhil\t Bhusan\t Mukhopadhya\n(L.R. 76 I.A. 74) referred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
    CIVIL  APPELLATE  JURISDICTION: Civil Appeal No.  90  of
\n1950. Appeal against the Judgment and Decree dated the\t22nd
\nJuly 1948 of the High Court of Judicature at Calcutta (K. C.
\nMitter, and K.C. Chunder J J) in appeal from Original Decree
\nNo. 49 of 1942 arising
\n74<\/span>
\n574<\/span>
\nout  of Decree dated the 8th September 1941 of the  Subordi-
\nnate Judge at Asansole in Suit No. 1 of 1941.
\n    Purusottam Chatterji (S. N. Mukherjee, with him) for the
\nappellants.\n<\/p>\n
    Panchanan Ghose, (P. C. Chatterjee,\t with  him) for\t the
\nrespondent.\n<\/p>\n
    1951. May 4. ‘the following judgments were delivered :–
\n    DAS\t J.–This appeal arises out of a suit filed  by\t the
\nappellants on January 2, 1941, in the Court of the  Subordi-
\nnate Judge, Asansole. That suit came to be filed in  circum-
\nstances which  may now be  stated shortly.\n<\/p>\n
    A  suit  had been instituted by  one  Kumar\t Dakhineswar
\nMalia against Rameswar Malia, Rani Bhaba Sundari and  others
\nfor  partition\tof the Searsole Raj Estate.   One  Bhagabati
\nCharan\tMitra was appointed receiver of that estate in\tthat
\nsuit. On August 10, 1908, the said receiver with the permis-
\nsion of the Court which had appointed him as receiver grant-
\ned two mining leases, each for 999 years–one in respect  of
\n5\/16  share  of the Malias in Mouza Monohar  Bahal  and\t the
\nother in respect of 230 bighas in village Marich Kota–to  a
\nfirm  then carrying on business under the name and style  of
\nLaik  Banerjee & Company. On the same day the said  receiver
\nwith like permission mortgaged these properties to the\tsaid
\nfirm  as security for the due repayment of the loan  of\t Rs.
\n100,000\t advanced by that firm.\t The Malias joined  the\t re-
\nceiver\tin executing the aforesaid leases and the  mortgage.
\nAs a result of these transactions the firm of Laik  Banerjee
\n&  Company  became  the lessees for 999\t years\tof  the\t two
\nproperties as well as the mortgagee of the lessors’ interest
\nin  the\t same.\t By diverse processes not  necessary  to  be
\ndetailed,  the\tappellants  have become\t the  successors  in
\ninterest of the mortgagors  and the respondent Deva Prasanna
\nMukerjee has become the successor in interest of the mortga-
\ngee under the mortgage of August 10, 1908.\n<\/p>\n
575<\/span><\/p>\n
    On\tMarch 31, 1922, Deva Prasanna filed suit No.  78  of
\n1922 for enforcing the mortgage of 1908. Preliminary  decree
\nwas  passed in the last mentioned suit on ‘ July  31,  1928,
\nand a final decree for sale was made I on February 26, 1929.
\nIn  execution of this final decree the mortgaged  properties
\nwere  sold  at a Court i sale and  were\t purchased  by\tDeva
\nPrasanna  for’ Rs. 59,000.  This sale was confirmed  by\t the
\nCourt on June 30, 1931.\t A large sum remaining still due  to
\nDeva  Prasanna,\t he applied for, and on\t October  30,  1935,
\nobtained a personal decree for Rs. 1,27,179-0-6 against Raja
\nPramatha  Nath\tMalia who had by  inheritance  acquired\t the
\nlessors’ interest and become the borrower.
\n    In\t1936, Deva Prasanna  started execution case No.\t 118
\nof  1936 for execution of the personal decree  and  attached
\ncertain\t properties alleging that the same belonged  to\t the
\nRaja. The exact date of the attachment does not appear\tfrom
\nthe  printed record.  The Raja as Sibait of a certain  deity
\nand his two sons, the appellants before us, objected to\t the
\nattachment  of\tthese  properties and filed  a\tclaim  case.
\nNegotiations  for  settlement  started\tand  eventually,  on
\nJanuary\t 30, 1937, a petition (Ex. 2) was filed in the\texe-
\ncuting Court stating as follows :-\n<\/p>\n
    “The judgment debtor having made special requests to the
\ndecree-holder  for an amicable settlement of  the  aforesaid
\nexecution  case, the decree-holder has agreed to  the  same.
\nBut  some time is required to settle the talks and  all\t the
\nterms  etc.   The  judgment debtor has paid  to the decree
\nholder the costs of this execution amounting to Rs. 76-14-0,
\nand  he having made requests for this execution\t case  being
\nstruck\toff  for the present on keeping\t the  attachment  in
\nforce, the decreeholder has agreed to it.\n<\/p>\n
    It\tis, therefore, prayed that under  the  circumstances
\naforesaid,  the\t Court\tmay be pleased to  strike  off\tthis
\nexecution case keeping the attachment in force.”\n<\/p>\n
    Neither  the original nor a certified copy of the  order
\nmade on that date by the executing Court on the
\n576<\/span>
\nabove petition is forthcoming but the parties have definite-
\nly  agreed  that the order is  substantially  and  correctly
\nentered\t in column 20 of Ex. F which is a certified copy  of
\nextract from the Register of applications for executions  of
\ndecrees relating to execution\t  Case No. 118 of 1936.\t The
\nheading\t of column 20 is ‘Date on which execution  case\t was
\nfinally\t disposed of and purport of final order.” The  entry
\nin column 20 under that head is:\n<\/p>\n
    “D.\t H. admits receipt of Rs. 76-14\/- as costs  of\tthis
\ncase from the J.D. The execution case is dismissed for\tnon-
\nprosecution–the  attachment already effected in  this\tcase
\ncontinuing.\n<\/p>\n
\t\t\t      30th January 1937.”\n<\/p>\n
    The entry under column 11 of that very exhibit reads  as
\nfollows :–\n<\/p>\n
    “Claim case automatically drops as the execution case is
\ndismissed.  It is, therefore, rejected without any  sort  of
\nadjudication.\n<\/p>\n
\t\t\t\t 30th January 1937.”\n<\/p>\n
     In\t May  1937, the Searsole Raj Estate came  under\t the
\ncharge of the Court of Wards. By a Kobala executed with\t the
\npermission of the Board of Revenue Raja Pramatha Nath  Malia
\nand his two sons Kumars Pashupati Nath Malia and  Kshitipati
\nNath Malia represented by Kumar Kshitipati Nath Malia as the
\nManager of the Searsole Raj Wards Estate conveyed a property
\nknown as Senapati Mahal to Deva Prasanna in full  settlement
\nof his claim under the personal decree against the Raja.  By
\nan agreement of even date, Deva Prasanna agreed to  reconvey
\nSenapati  Mahal\t to the Kumars if he was paid  Rs.  90,000\/-
\nwithin\ttwo years from that date. Senapati  Mahal  orginally
\nbelonged to the Raja but had been tranSferred by him to\t his
\ntwo  sons. A creditor, however, had filed a suit under\tsec-
\ntion  53  of the Transfer of Property Act<\/a>  challenging\tthat
\ntransfer and had actually got a decree declaring that trans-
\nfer  as fradulent and void as against the creditors  of\t the
\nRaja
\n577<\/span>
\nAn  appeal was filed by the Kumars which was pending at\t the
\ndate  of the Kobala of January 4, 1939, and, in the  circum-
\nstances,  it  was considered safer to join the Raja  in\t the
\nlast mentioned Kobala in favour of Deva Prasanna.
\n    On\tJune 2, 1939, a petition was filed in the  Court  of
\nthe Subordinate Judge, Asansole, on behalf of Deva  Prasanna
\nas  the decree holder. It was headed “Money  Execution\tCase
\nNo.  118  of 1936.  The relevant portions of  this  petition
\nwere as follows;–\n<\/p>\n
    “That  the above execution case was disposed of  on\t the
\n30th  January  1937 with the attachment\t of  the  properties
\nsubsisting; since then the decree put into execution in\t the
\nabove  case  has been adjusted after remission\tof  a  large
\namount\tof  interest  by the out and  out  sale\t of  certain
\nproperties   by\t a  registered\tKobala\tdated  4th   January
\n1939  …  ………………..\t  ……………………So
\nthere is no longer any need of the said attachment remaining
\nsubsisting.\n<\/p>\n
    It\tis,  therefore, prayed that the\t attachment  may  be
\nwithdrawn.”\n<\/p>\n
    On\tthe  same day the following order was made  on\tthat
\npetition:–\n<\/p>\n
    ” Heard learned pleaders for the parties.  They  jointly
\nask me to cancel the attachment (existing by special  order)
\nin Money Ex. 118 of 1936 though that case was dismissed.\n<\/p>\n
\t\t\t\tOrder
\n    The\t said  attachment  is cancelled and  the  decree  in
\nquestion is recorded as adjusted as stated by learned plead-
\ner for the decree-holder and pleader of the  judgment-debtor
\naccording  to the adjustment mentioned but not\tdetailed  in
\nthis petition of to-day.  Make necessary notes and send this
\npetition to the District Record Room.”\n<\/p>\n
    In\tthe  remarks column No. 22 in Ex.  F  the  following
\nentry was made :–\n<\/p>\n
    “The  said\tattachment is cancelled and  the  decree  in
\nquestion is recorded as adjusted as stated by learned
\n578<\/span>
\npleader for the D.H. and the pleader of the Judgment  Debtor
\naccording  to the adjustment mentioned but not\tdetailed  in
\nthis petition of to-day.  Dated 2nd June 1989.”
\nThe Raja died in August, 1940, leaving the two appellants as
\nhis sons and legal representatives.  The Bengal Money  Lend-
\ners Act, 1940 (Bengal Act<\/a> X of 1940) hereinafter called\t the
\nAct,  came  into force on September 1, 1940. On\t January  2,
\n1941,  the appellants who, as the legal\t representatives  of
\nthe  Raja, became “borrowers” within the meaning of the\t Act
\nfiled  the suit out of which the present appeal has  arisen.
\nThe suit was filed by the appellants against the  respondent
\nunder section 36<\/a> of the Act praying for reopening the trans-
\nactions and taking accounts and for release from all liabil-
\nities  in excess of the limits specified by law.  In  short,
\nthey  asked the Court to give them relief by exercising\t the
\npowers\tgiven to the Court by section 36<\/a> of the\t Act.  There
\nwas  also a prayer for reconveyance of the  Senapati  Mahal.
\nThe  respondent\t filed his written statement  setting  up  a
\nvariety\t of defences rounded on merits as well as  on  legal
\npleas in bar.  On May 8, 1941, the Subordinate Judge settled
\nthe issues and fixed June 9, 1941, “for a preliminary  hear-
\ning  of the suit and particularly of such of the  issues  as
\nhave been based on the pleas in bar.”  Eventually, the\tcase
\nwas  taken up for preliminary hearing on September 4,  1941,
\nand  by\t his judgment delivered on September  8,  1941,\t the
\nlearned Subordinate Judge dismissed the suit on issue No.  2
\nwhich was as follows:\n<\/p>\n
 “Does\tthe plaint disclose a valid cause of action for\t the
\nsuit ?”\n<\/p>\n
 The  appellants  preferred an appeal to the High  Court  at
\nCalcutta.   Although  the High Court (R.C. Mitter  and\tK.C.
\nChunder JJ.) did not accept all the reasonings on which\t the
\nlearned\t Subordinate  Judge had based  his  decision,  they,
\nhowever,  agreed that the appellants could get no relief  as
\nthe decrees in suit No. 78 of 1922 could not be reopened, as
\nthey were not passed in
\n579<\/span>
\n“a  suit  to which this Act applies” and  consequently\tdis-
\nmissed the appeal. The appellants have now come up on appeal
\nbefore us after having obtained a certificate from the\tHigh
\nCourt under section 110 of the Code of Civil Procedure.
\n    Learned  Advocate  appearing in support of\tthis  appeal
\nbefore us has contended that the High Court was in error  in
\nholding\t that  the decrees in Suit No. 78 of 1922  were\t not
\nliable to be reopened under the second proviso to section 36<\/a>
\n(1). Learned advocate for the respondent while joining issue
\non  this point also raised a point which, however,  did\t not
\nfind favour with the High Court, namely, that the respondent
\nas  a bona fide assignee for value of the mortgage debt\t was
\nprotected  by  sub-section (5) of section 36<\/a>.  It  is  quite
\nclear  that if either of the two points is  decided  against
\nthe appellants, this appeal must fail.\n<\/p>\n
    The main provisions of section 36<\/a> (1)are in the  follow-
\ning terms :–\n<\/p>\n
    “Notwithstanding  anything contained in any law for\t the
\ntime  being in force, if in any suit to which this  Act\t ap-
\nplies, or in any suit brought by a borrower for relief under
\nthis section, whether heard ex parte or otherwise, the Court
\nhas  reason to believe that the exercise of one or  more  of
\nthe  powers under this section will give relief to the\tbor-
\nrower, it shall exercise all or any of the following  powers
\nas it may consider appropriate namely, shall\n<\/p>\n
    (a)\t reopen any transaction and take an account  between
\nthe parties;\n<\/p>\n
    (b)\t notwithstanding any agreement, purporting to  close
\nprevious dealings and to create new obligations, reopen\t any
\naccount already taken between the parties;\n<\/p>\n
    (c)\t release the borrower of all liability in excess  of
\nthe limits specified in clauses (t) and (2) of section 30<\/a>;\n<\/p>\n
    (d) if anything  has been paid or allowed in account  on
\nor  after the first day of January, 1939, in respect of\t the
\nliability referred to in clause (c), order
\n580<\/span>
\nthe lender to repay any sum which the Court considers\t  to
\nbe  repayable  in respect of such payment  or  allowance  in
\naccount as aforesaid;\n<\/p>\n
    (e)\t set  aside either wholly or in part  or  revise  or
\nalter any security given or agreement made in respect of any
\nloan, and if the lender has parted with the security,  order
\nhim  to\t indemnify the borrower in such manner and  to\tsuch
\nextent as it may deem just.”\n<\/p>\n
     It\t will  be noticed (a) that the\tprovisions  of\tthis
\nsection apply notwithstanding anything contained in any\t law
\nfor  the time being in force, (b) that the powers  conferred
\non the Court or to be exercised either in any suit to  which
\nthis  Act applies or in any suit brought by a  borrower\t for
\nrelief\tunder the section and (c) that the Court  is  called
\nupon to exercise all or any of the powers conferred on it by
\nthe  section  if the Court has reason to  believe  that\t the
\nexercise  of one or more of the powers will give  relief  to
\nthe borrower.  In the present case the borrowers have insti-
\ntuted  a substantive suit for relief under section  36<\/a>\tand,
\ntherefore, if there was nothing also in the section and\t the
\nCourt had the requisite belief, the Court could exercise all
\nor  any\t of the powers and give relief to the  borrowers  in
\nterms of the prayers of the plaint.  There are, however, two
\nprovisions  to sub-section (1) of section 36<\/a>.  The  relevant
\nportion\t of  the second proviso is expressed  in  the  words
\nfollowing:\n<\/p>\n
     “Provided\tthat in exercise of these powers  the  Court
\nshall not-\n<\/p>\n
(i)\t    *\t      *\t\t*\t  *\n<\/p>\n
(ii) do anything which affects any decree of a\tCourt, other
\nthan a decree in a suit to which the Act  applies which\t was
\nnot  fully  satisfied by the first day\t of  January,  1939,
\nor  *\t *    *\t   *”\n<\/p>\n
      The  proviso makes it quite clear that in exercise  of
\nthe  powers  the Court cannot reopen or otherwise  affect  a
\ndecree of a Court unless such decree is one which was passed
\nin a suit to which this Act applies and’ which was not fully
\nsatisfied by January 1, 1939.  In the light of the  decision
\nof the Full Bench of the
\n581<\/span>
\nCalcutta  High\tCourt in Mrityunjay Mitra v.  Satis  Chandra
\nBanerji(1)  which was approved by the Privy Council in\tJadu
\nNath  Roy v. Kshitish Chandra Acharyya<\/a>(2), it has  not\tbeen
\ncontended, in view of the fact that the personal decree\t for
\nthe  balance remained unsatisfied on January 1,\t 1939,\tthat
\nthe  decrees  in Suit No. 78 of 1922  were  fully  satisfied
\nwithin the meaning of the above proviso. Therefore, the only
\nthing that remains to be ascertained is whether the  decrees
\nwere passed in “a suit to which this Act applies.” Section 2<\/a>
\n(22) of the Act is as follows:\n<\/p>\n
    “2.\t In this Act, unless there is anything repugnant  in
\nthe subject or context”-\n<\/p>\n
    (22) “Suit to which this Act applies “means any suit  or
\nproceeding  instituted or filed on or after the 1st  day  of
\nJanuary,  1939, or pending on that date and includes a\tpro-
\nceeding in execution–\n<\/p>\n
    (a) for the recovery of a loan advanced before or  after
\nthe commencement of this Act;\n<\/p>\n
    (b)\t for the enforcement of any agreement  entered\tinto
\nbefore or after the commencement of this Act, whether by way
\nof settlement of account or otherwise, or of any security so
\ntaken,\tin  respect of any loan advanced whether  before  or
\nafter the commencement of this Act; or\n<\/p>\n
    (c)\t for the redemption of any security given before  or
\nafter  the commencement of this Act in respect of  any\tloan
\nadvanced  whether before or after the commencement  of\tthis
\nAct.”\n<\/p>\n
    The\t words “instituted or filed on or after the 1st\t day
\nof  January, 1939, or pending on that date” have  been\tread
\nand understood as qualifying the words “any suit or proceed-
\ning” in the beginning of the definition as well as the words
\n“proceeding  in execution” occurring further down:  see\t per
\nSpens C.J. in Bank of’ Commerce Ltd. v. Amulya Krishna\t(3).
\nAccordingly, it has
\n(1) I.L.R. 11944) 2Cal. 376; 48 C.W.N. 361.
\n(2) L.R. 76 I.A. 179 at p. 190.\n<\/p>\n
(3) [1944] F.C.R. 126;A.I.R. 1944 F.C. 18.\n<\/p>\n
582<\/span><\/p>\n
been  held in Ram Kumar De v. Abhoya Pada Bhattacharjee\t (1)
\nthat  where a decree is such that the suit in which  it\t was
\npassed\thad terminated before January 1, 1939, and  no\tpro-
\nceeding in execution was started or was actually pending  on
\nor  after that date it is not a decree in “a suit  to  which
\nthis Act applies”and cannot be reopened.  The same view\t was
\nupheld\tby  a Special Bench of the Calcutta  High  Court  in
\nAparna\tKumari\tv.  Girish Chandra  (2)which  overruled\t two
\nearlier\t decisions  to the contrary.  The  construction\t put
\nupon  section  2<\/a> (22)by the Special Bench  and\tthe  reasons
\ngiven by them appear to us to be well-founded.\tIn the\tcase
\nnow  before us, the Suit No. 78 of 1922 was  instituted\t and
\nall the three decrees were passed long before the  specified
\ndate.\tThe only question that has therefore, to be  consid-
\nered  is whether any proceeding in execution was pending  on
\nor after that date.  The answer to this question will depend
\non  the\t true meaning and effect of the orders made  by\t the
\nexecuting Court (i) on January 30, 1937, and (ii) on June 2,
\n1939.\n<\/p>\n
    As to (i)–It is not disputed that the order of  January
\n30,  1937, was made under Order XXI, rule57, as\t amended  by
\nthe Calcutta High Court. Order XXI, rule 57, is expressed in
\nthe following terms :-\n<\/p>\n
    “Where any property has been attached in execution of  a
\ndecree\tbut  by reason of the  decree-holder’s\tdefault\t the
\nCourt is unable to proceed further with the application\t for
\nexecution,  it shall either dismiss the application  or\t for
\nany  sufficient reason adjourn the proceedings to  a  future
\ndate.  Upon the dismissal of such application the attachment
\nshall cease.”\n<\/p>\n
    The\t marginal note of the rule is determination  of\t at-
\ntachment.  The reason why rule 57 was introduced in the Code
\nof 1908 has been explained by Rank in C.J. in Shibnath Singh
\nRay v. Sheikh Saberuddin Ahmad<\/a>(3) as follows:–
\n (1) 46 C.W.N. 557; A.I.R. 1942 Cal. 441.\n<\/p>\n
 (2) 48 C.W.N, 406.\n<\/p>\n
 (3) I.L.R. 56 Cal. 416 at pp. 421-422
\n583<\/span>
\n    “Rule 57 of Order XXI was a new provision introduced  in
\n1908.\tIt is evident from the language of the rule  itself,
\nand  it is still more evident from the\tcircumstances  under
\nwhich  it  was\tpassed, that it was intended  to  provide  a
\nremedy\tfor the grievance or inconvenience which is  apt  to
\narise, where, after an attachment in execution, the applica-
\ntion  for  execution  cannot further be\t proceeded  with  by
\nreason of the decree-holder’s default.\tThis was, and  still
\nis,  a\tvery  common  case.  The  decree-holder\t makes\tsome
\ninformal arrangement to give the judgment-debtor time  with-
\nout obtaining full satisfaction of the decree ;the  applica-
\ntion  for  execution is not further prosecuted;\t it  is\t not
\nwithdrawn;  neither party attends.  In these  circumstances,
\nthe  object of the rule is to say that the Court  must\tmake
\neither\tan order for adjournment or an order  of  dismissal.
\nThe reason why it was necessary to require the Court, if  it
\ndid not adjourn a proceeding to a definite date, to  dismiss
\nthe application for execution formally and definitely can be
\namply illustrated from the decided cases.  In the absence of
\na definite order of dismissal the files of the Courts became
\nencumbered with a number of applications for execution which
\nwere water-logged and derelict, and a practice arose whereby
\nsuch applications were ordered to be ‘struck off.’  This was
\na  practice  not justified by the Code and  in\tcases  where
\nattachments  in\t execution  had already\t been  entered,\t the
\nquestion arose whether the effect of an order ‘striking off’
\nwas that the attachment made upon application for  execution
\nwas itself struck off or whether it remained notwithstanding
\nsuch  an order.\t Many other awkward and important  questions
\narose out of this practice and the object of rule 57 was  to
\nensure that this illogical and inconvenient practice  should
\nbe stopped. Applications for execution were to be definitely
\ndismissed if they were not adjourned to a future date.\t The
\nobject\tof  the last sentence in rule 57 is  to\t settle\t the
\nquestion  whether,  when  the application  in  execution  is
\ndismissed any attachment made under that application  should
\nfall to the ground or should subsist, and
\n584<\/span>
\nthe  legislature  has  provided that it is to  fall  to\t the
\nground.”\n<\/p>\n
    The new rule thus’ introduced left two distinct  courses
\nopen  to the executing Court in the situation  envisaged  by
\nthe  rule.   Each course had its advantage as  well  as\t its
\ndisadvantage.\tThus the adjournment of the  execution\tpro-
\nceedings  kept\tthe  attachment alive  without\tany  special
\ndirection.   While the adoption of this course\thelped\tbona
\nfide   arrangement   between  the  decree-holder   and\t the
\njudgment-debtor as to the time and manner of satisfaction of
\nthe  decree  it was calculated also to\tencourage  desultory
\nproceedings resulting in undesirable congestion in the files
\nof  the Executing Court by  keeping alive so many  execution
\nproceedings.  On the other hand, while the dismissal  of  an
\napplication  in the circumstances mentioned in the rule\t had
\nthe merit of preventing a congestion of the file by  finally
\ndisposing of the application by a final order, it was calcu-
\nlated to discourage decreeholders from giving even  reasona-
\nble  accommodation to the judgment-debtor on account of\t the
\ndestruction of the attachment which left the judgment-debtor
\nfree  to  deal\twith the property to the  detriment  of\t the
\ndecreeholder after the attachment ceased.  It was  evidently
\nwith a view to preserve the advantage of a dismissal and  at
\nthe same time to avoid the disadvantage of the rigid rule of
\ncesser of the attachment that the Calcutta High Court amend-
\ned rule 57 by adding the words “unless the Court shall\tmake
\nan order to the contrary” at the end of the last sentence of
\nthat rule.  The rule thus amended leaves three courses\topen
\nto  the\t Executing Court in case it finds  it  difficult  to
\nproceed with the execution case by reason of the default  of
\nthe  decree-holder.  It may (1) adjourn the proceedings\t for
\ngood  reason  which will automatically keep  the  attachment
\nalive  or  (2)\tsimply dismiss the  application\t which\twill
\nautomatically\tdestroy\t the attachment or (3)\tdismiss\t the
\napplication but specifically keep alive the attachment by an
\nexpress order. The rule, as amended, therefore, contemplates
\nthree distinct forms of order, any one of which may be\tmade
\nby the Court in the
\n585<\/span>
\ncircumstances mentioned in the rule.  The question before us
\nis as to the category in which the order made on January 30,
\n1937, in Execution Case No. 118 of 1936 falls.
\n    It will be recalled that the order of January 30,  1937,
\nwas  made  on a petition (Exhibit 2) filed on  that  day  in
\nExecution  Case No. 118 of 1936.  Great stress was  laid  by
\nthe learned advocate for the appellants on the words “struck
\noff for the present” occurring in the body of that petition.
\nIt  will  be  noticed that those words formed  part  of\t the
\nrequest of the judgmentdebtor which was being recited in the
\npetition. In the actual prayer portion the decree-holder did
\nnot use the words “for the present” but only asked the Court
\n“to strike off the execution case keeping the attachment  in
\nforce.”\t  Further, apart from what the parties\twanted,\t the
\nCourt  made  its intention clear in the very order  that  it
\npassed\tand which is entered in column 20 of Exhibit F.\t The
\nCourt  regarded the willingness of the the decree-holder  to
\nenter into a long and protracted negotiation with the  judg-
\nment-debtor as evidence of unwillingness on the part of\t the
\ndecree-holder  to  diligently\tprosecute   the\t   execution
\nproceedings  and accordingly  dismissed the  execution\tcase
\nfor non-prosecution but thought fit to expressly keep  alive
\nthe attachment.\t It is quite obvious that the Court made  an
\norder of the third kind mentioned above.  The three forms of
\norder permissible under rule 57 as amended by the High Court
\nare  quite distinct and independent of each other and  there
\nis no room for their overlapping.  If the mere\tcontinuation
\nof attachment will automatically convert an express order of
\ndismissal  of  the execution application which\tis  a  final
\norder  into  an order of adjournment which is  not  a  final
\norder  then there was no point in the High Court taking\t the
\ntrouble\t of  amending  rule 57 at all. The  Court  could  by
\nsimply\tadjourning the proceedings  automatically   continue
\nthe   attachment   without  any express\t direction  in\tthat
\nbehalf.\t  The fact that the Court gave an express  direction
\nthat  the attachment should continue clearly indicates\tthat
\nthe
\n586<\/span>
\nCourt  intended to make a final order of  dismissal.  Again,
\nthe heading of column 20 in Exhibit F clearly indicates that
\nonly  a\t final order is to be entered in that  column.\t The
\nfact that the order was entered in that column affords\tsome
\njustification for the conclusion that the Court made a final
\norder  of dismissal. That the claim case  was  automatically
\ndropped\t is yet another indication that the  execution\tcase
\nwas  at an end.\t The fact that the judgment-debtor had\tpaid
\nthe full costs of the execution case is also a feature which
\ngoes  to show, to a certain extent at any rate if not  deci-
\nsively,\t that the execution proceeding was finally  disposed
\nof  by the order. The following endorsement appears  on\t the
\npetition Ex. 2 (a), dated June 2, 1939:\n<\/p>\n
    “Heard  learned pleaders for the parties.  They  jointly
\nask me to cancel the attachment (existing by special  order)
\nin Money Ex. 118 of 1936 though that case was dismissed.”\n<\/p>\n
    This  endorsement  also  clearly shows  that  the  Court
\nitself understood that the order that it made on January 30;
\n1937, was a final order of dismissal and that the attachment
\nhad been continued by a special order. On a consideration of
\nall these matters I have not the least doubt in my mind that
\nthe order of January 30, 1937, was in form and in  substance
\na final order of dismissal of the Execution Case No. 118  of
\n1936  and  that the attachment was continued  by  a  special
\norder  such as is contemplated and authorised by the  amend-
\nment  made  by the Calcutta High Court in rule\t57.  Learned
\nadvocate for the appellants contended that if the  execution
\ncase came to an end the attachment could not be left hanging
\nin  the air. There is no substance in this  argument.  Ordi-
\nnarily, an attachment is supported by an execution case\t and
\nif  the\t execution case is simply dismissed  the  attachment
\nmust fail with it. But rule 57, as amended, expressly empow-
\ners the Court to dismiss an execution application but at the
\nsame  time to keep alive the attachment by a special  order.
\nThat is what was done in this case. Here the attachment does
\nnot,  to use the expression of the learned advocate for\t the
\nappellants,
\n587<\/span>
\nhang  in  the air. It rests upon the solid foundation  of  a
\nspecial order which rule 57, as amended, in terms authorises
\nthe Court to make. The continuance of the attachment, in the
\ncircumstances, needs no execution proceeding to support\t it.
\nTake the case of an attachment before judgment. Under  Order
\nXXXVIII, rule 11, where after an order of attachment  before
\njudgment  a decree is passed in favour of the plaintiff,  it
\nis not necessary upon an application for execution of such a
\ndecree to apply for re-attachment of the property.  It means
\nthat the attachment continues and the judgmentdebtor  cannot
\ndeal  with the property to the disadvantage of\tthe  decree-
\nholder. After the decree is passed, the attachment continues
\nbut nobody will say that although there has been no applica-
\ntion  for  the execution of the decree at any  time  by\t the
\ndecree-holder there is, nevertheless, an execution  proceed-
\ning  pending merely because the attachment continues.\tHere
\nalso  the attachment subsists and rests only upon the  terms
\nof Order, XXXVIII rule 11, and without any proceeding.\tSuch
\nattachment  cannot be called a proceeding in execution,\t for
\nnone was ever initiated after the decree was passed.  In  my
\njudgment,  the order of January 30, 1937, was a final  order
\nwhich brought the Execution Case No. 118 of 1936, to an\t and
\nand the attachment continued, not because there was a  pend-
\ning  execution\tproceeding but because a special  order\t was
\nmade  under Order XXI,\t    rule 57, as amended by the\tHigh
\nCourt.\n<\/p>\n
As to (ii)–Learned advocate for the\t    appellants\tthen
\ncontended  that\t the petition (Ex. 2a) dated June  2,  1939,
\namounted to a proceeding in execution and as that was insti-
\ntuted and was pending after January 1, 1939 the\t proceedings
\ncame  within the definition in section 2<\/a> (22)of “a  suit  to
\nwhich  this Act applies”.  I do not think this\targument  is
\nsound. The petition (Ex.2a) was not really an application at
\nall. See Raja Shri Prakash Singh v. The Allahabad Bank\tLtd<\/a>.
\n(1). In substance, it was nothing but a certification by the
\ndecree-holder  of the satisfaction of the decree.  The\tmere
\nfact
\n(1) 33 C.W.N. 267; A.I.R. 1929 P.C. 19,
\n588<\/span>
\nthat  the document was in the form of a petition  could\t not
\nconvert what was really the usual certifying procedure\tinto
\na  proceeding  in execution for recovery of a  loan  or\t for
\nenforcement  of any agreement. It was purely  an  intimation
\ngiven  to the Court by the decreeholder that the decree\t had
\nbeen satisfied out of Court and the prayer for withdrawal of
\nthe attachment was merely consequential and would follow  as
\na matter of course on full satisfaction of the decree  being
\nrecorded.  The order made on that petition also\t shows\tthat
\nthe  decree was recorded as adjusted and the attachment\t was
\ncancelled. In my judgment, that petition (Ex. 2a) was not an
\napplication such as would initiate a proceeding in execution
\nfor  any of the purposes mentioned in clauses (a) or (b)  or\n<\/p>\n
(c) of section 2<\/a> (22) of the Act.\n<\/p>\n
    For\t reasons  stated  above, the decrees  sought  to  be
\nreopened were not decrees made in “a suit to which this\t Act
\napplies”.  Suit No. 78 of 1922 was neither instituted on  or
\nafter January 1, 1939, nor was it pending on that date,\t all
\nthe three decrees having been passed long before that  date.
\nNor was any proceeding in execution such as is\tcontemplated
\nby  section  2<\/a> (22) instituted or pending on or\t after\tthat
\ndate.  The  Execution Case No. 118 of 1936 was at an end  on
\nJanuary 30, 1937, and the petition of June 2, 1939, was\t not
\nan application at all and was certainly not a proceeding  in
\nexecution  within the meaning of section 2<\/a> (22) of the\tAct.
\nThis conclusion is sufficient to dismiss this appeal and  it
\nis  not\t necessary  for us to consider\tthe  other  question
\nraised\tby the respondent on the strength of section 36<\/a>\t (5)
\nof the Act and I express no opinion on that question.\n<\/p>\n
     The  result  is that this appeal must  stand  dismissed
\nwith costs and I order accordingly.\n<\/p>\n
KANIA C.J.–I agree.\n<\/p>\n
     PATANJALI\tSASTRI J.–The facts bearing on the  dispute
\nin  this  appeal  are fully stated in the  judgment  of\t ray
\nbrother Das which I have had the advantage of reading and it
\nis unnecessary to recapitulate them here.\n<\/p>\n
589<\/span><\/p>\n
    The\t appellant mortgagor seeks in these proceedings\t the
\nreliefs\t provided  by  the Bengal  Money-lenders  Act,\t1940
\n(hereinafter referred to as the Act) in respect of a  decree
\ndebt  payable  by him.\tThe respondent\twho  represents\t the
\nsub-mortgagee  decree-holder invokes the protection  of\t two
\nexemptions contained in the Act: (1) Section 86<\/a> (1), proviso\n<\/p>\n
(ii),  which  exempts inter alia “any decree  other  than  a
\ndecree\tin  a suit to which this Act applies which  was\t not
\nfully  satisfied by the first day of January,  1939”.\tThis
\nraises\ta dispute as to whether the respondent’s decree\t was
\npassed\tin a suit to which the Act applies.  (2) Section  36<\/a>
\n(5) which exempts “the rights of any assignee or holder\t for
\nvalue  if the Court is satisfied that the assignment to\t him
\nwas  bona fide and that he had not received the\t notice\t re-
\nferred\tto in clause (a) of sub-section (1) of section\t28<\/a>“.
\nThis  raises  the  question whether a  sub-mortgagee  is  an
\nassignee within the meaning of the Act.\n<\/p>\n
    On the first question “a suit to which this Act applies”
\nis  defined in section 2<\/a> (22) as meaning “any suit  or\tpro-
\nceeding instituted or filed on or after the 1st day of Janu-
\nary, 1939, or pending on that date and includes a proceeding
\nin execution for (among other things) the recovery of a loan
\nadvanced before or after the commencement of this Act.” This
\ndefinition  has been construed as requiring that  the  “pro-
\nceeding in execution “referred to therein should be  pending
\non  1st January, 1939, and the question\t accordingly  arises
\nwhether the order of the executing court dated 30th January,
\n1937, which purported to dismiss the respondent’s  execution
\ncase  for  non-prosecution while continuing  the  attachment
\nalready\t effected,  terminated the proceeding  in  execution
\nwhich  had resulted in the attachment. It was said that\t the
\norder was made in accordance with Order XXI, rule 57, of the
\nCivil  Procedure Code as amended by the Calcutta High  Court
\nand  must, therefore, be taken to have been intended to\t put
\nan  end\t to the execution proceeding altogether.  I  am\t not
\nsatisfied  that such was the result of the  dismissal.\t The
\namendment which added the words “unless the court shall make
\nan order to the contrary”\n<\/p>\n
200<\/span><\/p>\n
at the end of the rule envisages a dismissal of an “applica-
\ntion  for  execution” while at the same\t time  continuing  a
\nsubsisting attachment. The dismissal of 30th January,  1987,
\nmust, therefore, be taken to be a dismissal of the execution
\napplication  then  before the court and cannot be  taken  to
\nhave  any wider operation. On the other hand,  the  continu-
\nance, in express terms, of ‘the\t attachment  notwithstanding
\nthe  dismissal, indicates  that\t the\tproceeding     which
\nhad  resulted\tin the attachment  was\tkept  alive   to  be
\ncarried\t forward later on by sale of the attached  property.
\nAttachment  itself  is\ta  “proceeding in execution” and, so
\nlong.as it subsists, the proceeding in execution can well be
\nregarded  as pending. In In re Clagett’s Estate; Fordham  v.
\nClagett (1)  Jessel M.R. declared that “a pending matter  in
\nany court of justice means one in which some proceeding\t may
\nstill be taken”.  The attachment was cancelled by the  court
\nonly  on  2nd June, 1939, when the decree  in  question\t was
\nrecorded as adjusted and then, and not before, could  execu-
\ntion of the decree be properly considered to have  terminat-
\ned.   In this view, a “proceeding in execution” was  pending
\non the 1st day of January, 1939, and the respondent’s decree
\nmust  be taken to have been passed “in a suit to which\tthis
\nAct applies’ ‘, with the result that the respondent’s  claim
\nto  exemption under proviso (ii) to sub-section (1) of\tsec-
\ntion 36 of the Act must fail.\n<\/p>\n
    I am, however, of opinion that the respondent’s claim to
\nrecover\t his decree debt is protected under section 36<\/a>\t(5).
\nThere  is no question here but that the submortgage  to\t the
\nrespondent’s predecessor in title was bona fide.  Nor  could
\nhe  have received the notice referred to in clause  (a)\t of’
\nsub-section (1) of section 28<\/a> as the transaction took  place
\nlong  before  the Act was passed.  It is not  disputed\tthat
\nsection 36<\/a> (5) applies to pre-Act debts. [See Renula Bose v.
\nManmatha  Nath Bose<\/a>(2)].  The only question,  therefore,  is
\nwhether\t the  respondent  as sub-mortgagee  is\tan  assignee
\nwithin\tthe  meaning of sub-section (5) of section  36<\/a>.\t The
\nlearned
\n(1) 20 Ch. D. 687.\t  (2) L.R. 72 I.A. 156,
\n591<\/span>
\nJudges in the court below held that he was not, following an
\nearlier decision of their own court in Promode Kumar Roy  v.
\nNikhil\tBhusan Mukhopadhya(1). That decision,  however,\t was
\nreversed by the Privy Council in Promode Kumar Roy v. Nikhil
\nBhusan\tMukhopadhya(2) where their Lordships dealt with\t the
\nquestion now before us in the following terms :-\n<\/p>\n
    “It\t was suggested, in the judgment of Mitter  J.  (with
\nwhich  Waight  J. agreed), and in the argument for  the\t re-
\nspondents that if a sub-mortgagee were an `assignee’  within
\nsection 36<\/a>, sub-section (5), of the Act., certain  difficul-
\nties  and  anomalies would result.  Their  Lordships  cannot
\nagree  with this suggestion. They express no view as to\t the
\nposition  which arises if the sub-mortgage contains  only  a
\ncharge\ton the original mortgage debt, but when it  contains
\nan  assignment\tof that debt, and of all the rights  of\t the
\nmortgagee, the position appears to be free from\t difficulty.
\nRelief can be given to the original mortgagor as against the
\noriginal  mortgagee under section 36<\/a>, but such\trelief\tmust
\nnot  affect the rights of the assignee by way  of  sub-mort-
\ngage. To take an imaginary case by way of illustration,\t let
\nit be assumed that the amount due on the original  mortgage,
\nfor  principal\tand interest at the original  rate,  is\t Rs.
\n1,000,\tand the sum due on the sub-mortgage  by\t assignment,
\nfor principal and interest at the original rate, is Rs. 500.
\nLet it further be assumed that if relief could be given, and
\nwere  given, under section 36<\/a> as against both mortgagee\t and
\nsub-mortgagee,\tthe sums due to them respectively  would  be
\nRs. 800 and Rs. 400. By reason of sub-section (5), the\tsub-
\nmortgagee’s rights cannot be affected. He can therefore,  as
\nassignee  of the mortgage debt: claim his full Rs.  500,  as
\nagainst\t both mortgagor and original mortgagee.\t But if\t the
\ncourt  gives  the mortgagor relief as against  the  original
\nmortgagee,  the mortgagor will only be liable to pay to\t the
\noriginal mortgagee Rs. 300, the balance of the reduced\tdebt
\nafter paying the sub-mortgagee in full.\n<\/p>\n
    As\tto contention (b), it is impossible to read  subsec-
\ntion (5) of section 36<\/a> as referring only to an assignee
\n(1) 50 C.W.N. 407.\t  (2) L.R. 76 I.A. 74.\n<\/p>\n
592<\/span><\/p>\n
of a mortgage decree. The words and that he had not received
\nthe  notice  referred to in clause (a)of subsection  (1)  of
\nsection\t 28<\/a>  make it plain that an assignee  of\t a  mortgage
\ndebt  is within the sub-section, since\t section  28<\/a>,\tsub-
\nsection (1) is concerned only with assignment of debts” (pp.
\n83-84).\n<\/p>\n
     The  sub-mortgage\there in question  also\tcontains  an
\nassignment of the debt due under the original mortgage\tdebt
\nand  of\t “the entire interest” of  the\toriginal  mortgagee.
\nAfter  reciting\t their\toriginal  mortgage,  the  mortgagees
\nproceed to state in the deed of sub-mortgage:\n<\/p>\n
     “We  mortgage all that is at present due and that\twill
\nin  future  become due to us, the first, second,  third\t and
\nfourth\tparties, on account of the said one lakh  of  rupees
\ntogether  with\tinterest and the entire interest  under\t the
\nmortgage  taken by us on the basis of the said Indenture  in
\nrespect\t of five annas share of the said Niskar Mouza  Mono-
\nharbahal and in respect of sixteen annas of the surface\t and
\nunderground rights in the said Mouza Marichkota and we\tmake
\nover the said Deed of Indenture to you”.\n<\/p>\n
     The decision referred to above is, therefore,  directly
\nin point and rules the present case.\n<\/p>\n
     It was suggested that the said decision was  inconsist-
\nent  with the earlier decisions of the same tribunal in\t Ram
\nKinkar\tBanerjee  v. Satya Charan Srimani<\/a>(1)  and  Jagadamba
\nLoan Co. v. Raja Shiba Prasad Singh<\/a>(2). Stress was laid upon
\nthe  expression\t “all the rights of the mortgagee”  used  by
\ntheir  Lordships  in the passage quoted above,\tand  it\t was
\npointed out that in the earlier decisions they held that  in
\nIndia  a legal interest remained in the mortgagor even\twhen
\nthe  mortgage  was in the form of an English  mortgage,\t and
\nthat the interest taken by the mortgagee was not an absolute
\ninterest.  This proposition, it was said, implied that in  a
\nsub-mortgage  all the rights of the original  mortgagee\t are
\nnot  assigned  to the sub-mortgagee and that  the  mortgagee
\nstill retains a legal
\n(1) 64 I.A. 50.\t\t     (2) 68 I.A. 67.\n<\/p>\n
  593<\/span><\/p>\n
interest in the original mortgage.  This is a rather  super-
\nficial\tview  of  the matter.  In the  earlier\tcases  their
\nLordships  were considering the quantum of  interest  trans-
\nferred\tby  a  mortgagor to a mortgagee\t in  a\tmortgage  of
\nleasehold interest for the purpose  of\tdetermining  whether
\nor not there was privity  of estate between the landlord and
\nthe  mortgagee. If the mortgage could operate as an  assign-
\nment  of the entire interest of the mortgagor in the  lease,
\nthe  mortgagee would be liable by privity of estate for\t the
\nburdens of the lease. If on the other hand, it operated only
\nas a partial assignment of the mortgagor’s interest, no such
\nresult\twould follow. It was in determining that issue\tthat
\ntheir  Lordships  held that no privity of  estate  arose  in
\nIndia because a legal interest remained in the mortgagor and
\nthe  interest  taken by the mortgagee was  not\tan  absolute
\ninterest. These cases had no bearing on the question,  which
\narose in Promode Kumar Roy v. Nikhil Bhusan Mukhopadhya\t (1)
\nand arises in the present case, as to whether a\t sub-mortga-
\ngee  becomes  an assignee of the mortgage debt\tand  of\t the
\nmortgagee’s  right  to recover the debt\t from  the  original
\nmortgagor.   The  Act<\/a> affords relief to certain\t classes  of
\ndebtors by curtailing pro tanto the rights of the creditors,
\nsubject\t to certain exceptions in regard to “assignments  of
\nloans”.\t  In such a context the only relevant  consideration
\ncould  be whether the assignment is such as to\testablish  a
\ndebtor\tand creditor relation between the assignee  and\t the
\ndebtor\tso  as to bring the case within the purview  of\t the
\nAct.   If the sub-mortgagee obtained, by virtue of the\tsub-
\nmortgage, the right to sue the original mortgagor for recov-
\nery of the mortgage debt, that would seem sufficient to make
\nhim an assignee within the meaning of the Act.\tIt was\tfrom
\nthis point of view that the question as to the nature of the
\nright transferred to a sub-mortgagee under his\tsub-mortgage
\nwas considered in Promode Kumar Roy v. Nikhil Bhusan  Mukho-
\npadhya(1)  as it has to be considered in the  present  case,
\nand the reference to the sub-mortgage containing an  assign-
\nment of all the rights
\n(1) 76 I,A. 74.\n<\/p>\n
594<\/span><\/p>\n
of  the mortgagee must, in that context, be understood\twith
\nreference to the sufficiency of the right assigned to enable
\nthe  sub-mortgagee to sue the original mortgagor in his\t own
\nright,\tso  as to bring the relevant provisions of  the\t Act
\ninto  play  as between them. The reservation made  by  their
\nLordships  in the case of a sub-mortgage containing  only  a
\ncharge on the original mortgage is significant and  supports
\nthis view.  I do not consider, therefore, that there is\t any
\ninconsistency  between Promode Kumar Roy  v.  Nikhil  Bhusan
\nMukhopadhya(1) and the earlier decisions, and even if  there
\nbe any such inconsistency it has no relevance to the present
\ncase.\n<\/p>\n
    In\tthe result I agree that the appeal fails and  should
\nbe dismissed with costs.\n<\/p>\n
\t\t\t     Appeal dismissed.\n<\/p>\n
Agent for the appellants: R.R. Biswas.\n<\/p>\n
Agent for the respondent: Sukumar Ghose.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Kumar Pashupatinath Malia & … vs Deba Prosanna Mukherjee on 4 May, 1951 Equivalent citations: 1951 AIR 447, 1951 SCR 572 Author: S R Das Bench: Das, Sudhi Ranjan PETITIONER: KUMAR PASHUPATINATH MALIA & ANOTHER Vs. RESPONDENT: DEBA PROSANNA MUKHERJEE. DATE OF JUDGMENT: 04\/05\/1951 BENCH: DAS, SUDHI RANJAN BENCH: DAS, SUDHI […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-253732","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nKumar Pashupatinath Malia & ... vs Deba Prosanna Mukherjee on 4 May, 1951 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/kumar-pashupatinath-malia-vs-deba-prosanna-mukherjee-on-4-may-1951\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Kumar Pashupatinath Malia & ... vs Deba Prosanna Mukherjee on 4 May, 1951 - 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