RAM JEE AND ANOTHER (and 3 other appeals) [SHiil H.un.u. KANIA C.J & Ors. v. Nadni Prasad Singh (A.I.R. 1940 Pat. 65). UJl Singh v. Ramnarain Ram & Ors.

When the decree-holder sought to execute the money decree by attachment and judgment debtors' properties stating that they were subject to a mortgage the mortgage judgment-debtors, who are brothers, sections the earlier Bihar Money-lenders and 16 of 11 Act III of 1938 and section 47 of the Civil Pro The petitions (two by each of them) cedure Code. the brothers. They urged that on a proper calculation under section 11 no lien to payments was subsisting on- the properties owing Rs. 92,394-2-0. The Subordinate Judge held plea of the judgment-debtors could not be entertained in the Miscellaneous case before him relating execution and all that could be done was to notify the incumbrance without deciding anything as mortgage the amount claimed to be due under it ; and this conclusion was partly based on the fact that section 16 of the Act had been declared by the High Court void. Appeals the High Court were dismissed. The judgment-debtors there upon preferred an appeal to the Federal Court, · con tending that section 7 and 13 of the new Act ( corres sections 7 and 11 of the old Act) were ponding to applicable and that it was the duty of the court estimate the value of the property after making the nec~ssary calculations under section 7 with reference to the lien. The decision of the Federal Court is reported in Ramnandan Prasad Narain Singh and Another v. Shri Mahanth Goshwami Madhwanand Kulpati Ramji('). The case was remitted back to the High (!) [1940] F.C.R. I. the correctness of S.C.R. SUPREME COURT REPORTS 141 Court, giving liberty to the appellants cation under section 13. to file an appli 1951 Ramnandan Prasad Narayan Singh v. Mahanth Kapjldto Ram ]It and Anoth<T, Chandrasekhar a Aiyar ]. filed the In answer to a fresh application for execution dated 2-7-1942, the two brothers same objections as before. Miscellaneous Cases Nos. 45 and 46 of 1942 related to sections 7 and 13 of the Bihar Money-lenders Act and Miscellaneous Cases Nos. 50 and 52 of 1942 related to the objections under section 47 of the Code of; Civil Procedure. The Subordinate Judge held that the amount of the loan should be taken as the amount mentioned in the mortgage deed of 1931 and not the amount advanced in 1893 and that a sum of Rs. 70,840 was still due on the bond. He determined the market value of the several properties given as security, adopt ing 16 times the net income as the basis. Even accoriling in certain respects. Appeals to the High Court were numbered .as M. A. 108 to 111 of 1943 and they were heard by Manohar Lall and Imam JJ. They modified the order of the lower Court them the amount of the loan was what was mentioned in the mortgage bond of 6-10-1931, but as a sum of Rs. 11,855-3-0 had been repaid expressly towards principal amount after the date of the bond, . that amount became reduced to Rs. 28,150. Adding an equal sum by way of interest which according to them to be allowed was the maximum amount, permitted under section 7 of the Act, the liability was stated to be Rs. 56,300 and a charge was declared on the property for this amount. They also directed that the valuation of the property should be fixed at twenty times. It is income and not sixteen times the net from this order that the present appeals have been preferred. (a) that Two points were urged on behalf of the appellants, the decree-holder was barred by namely constructive res-judicata contending construction placed upon section 7 by judgment debtors was wrong ; and (b) that in applying section 7, loan of the original amount of we must consider Rs. 40,000 given in the year 1893 and allow the claim - 1951 Ramnarztfan Prasad Narayan Singh v. Mnhaoth Kapildeo Ram Jee and Anothtr Chandrasekhar A(yar J· 142 SUPREME COURT REPORTS of interest only for into account all sums paid by the appellants and predecessors towards interest since 1893. that maximum sum, after [1951] taking section 11 was The first point is entirely without substance. When the decree-holder contended section 11 of the Bihar Money-lenders Act, 1938, was declared void and ultra vires and that therefore section 7 of the new Act which corresponded to inappli they were cable, the judgment-debtors pleaded entitled to the benefit of section 7 of the new Act. The Federal Court held in Ramnandan Prasad Narain Singh and Another v. Kulpathi Shri Mah'anth Gosh wami Madhwanand Ramji(') that the judgment-debt ors (present appellants) were entitled to claim the bene fit of the provisions of the new Act when the executing court proceeded under section 13 value of the properties to be sold. The correct inter pretation of section 7 was not in question between the parties. To say that the appellants were entitled to take advantage of the provisions of section 7 is entirely interpretation different from the contention sought to be put by them on section 7 was one. The Federal Court was not dealing with any question of interpretation at all. see where constructive res-judicata comes in, so as to be of help to the appellants. the doctrine of to determine impossible It is their behalf relates to The second question raised on the Bihar Money the true meaning of section 7 of lenders (Regulation of Transactions) Act VII of 1939, which is in these terms :- "7. Notwithstanding contrary anything contained in any other law or in anything having the force of law or in any agreement, no Court shall, in any suit brought by a money-lender before or after commencement of this Act in respect of a loan advanced before or after the commencement of this Act or in any appeal or proceedings in revision arising out oE such suit, pass a decree for an amount of interest for suit, the period institution of preceding (1) [1940] F.C.R. I. 1951 &mnaadim PrtJJad Narayan Singh v. Mahanth l(apj/deo Ram Jae and A not ha. CluznartJJekhora Aiyar ]. • S.C.R. SUPREME COURT REPORTS 143 realised as which together with any amount already is greater interest through the court or otherwise, than the amount of loan advanced, or, is based on a document, the amount of loan mentioned in, or evidenced by, such document." if the In the present case, the original loan of Rs. 40,000 11-1-1893. The appellants was advanced as early as contend that for the purposes of calculating the interest to be decreed prior to the date of the suit advanced must be taken to be the original sum and that if an account is taken of all the sums received by the creditor as interest from that date up to the date of the suit, there would be nothing due for interest. that having On the other hand, the decree-holder urges loan must regard to the latter part of the section, be taken to be the amount mentioned in the mortgage bond dated 6-10-1931, namely Rs. 42,000. Whichever method of calculation is· adopted, it must be remem bered that it has . to be . made not for the purposes of passing any decree on the mortgage loan, but for esti the value of the mating under section 13 of the Act properties to be brought. to sale in execution of money decree against the appellants. As pointed out by Sir Maurice Gwyer C.J. Surendra Prasad Narain . Singh v. Sri Gajadhar Prasad Sahu Trust Estate and Others(1), "Section 7 of is no doubt extremely obscure and ill the Act of 1937 drawn." The true intention . of the framers of the Act the Patna High is somewhat difficult to gather. But Court has been consistently placing . upon section an interpretation which is opposed to the · · contention of the appellant in these proceedings. The point came up expressly Singheshwp Sibgh and Others v. Madni Prasad Singh and Others(2) where a mortgage bond was executed on 31-8-1922 for a sum of Rs. 2,000 which was the balance of the priQcipal and interest due under a the 11th of October, 1912, for mottgage bond of for decision (1) [19.fOJ F.c.R. 39.: 19 . . (2) A.I.R. 1940 Pat. 65. J95J Ranmandax Prasad Narr.yan Singh v. Afahanth f(apilr/to R.arr Jee and Another, Chandrasekhara Abar J. 144 SUPREME COURT REPORTS [1951] judgment-debtors raised the plea Rs. 1,391. The the court should go back to the earlier bond of 1912 and that as a sum of Rs. 1,512 had been paid as and by way of interest towards that bond, no decree could the principal be passed against them for more than sum of Rs. 1,391. The learned Judges rejected the docu contention and took the amount stated in ment of 1922, namely Rs. 2,000, as the loan and held that the plaintiffs were entitled to get a decree for interest for a sum not larger than Rs. 2,000 as no payment had been proved to have been made after the execution of the bond. The same view was taken in Lal Singh v. Ramnarain Ram and Others(') and the plaintiffs were ~warded a decree on the basis that the loan was to be taken as Rs. 2,909-8-0 which was the amount for which the hand-note sued upon was executed and not Rs. 1,000 which was the original amount advanced upon an earlier hand-note of year 1924. The case reported in Madho Prasad Singh v. Mukutdhari Singh and Others(') lays down the same position. The Full Bench decision in Deo Nandan Prasad v. R'am Prasad(') same view, pointing out the distinction between sections 7 and 8 of the Act and stating that while under section 8 we loan in spite of a later document can go to the original under section 7, the loan must relate the document on which the suit is based, that is, the final document In each ~ne of these cases, the and not the original one. question of the true meaning of section 7 was pointedly considered. This construction no dciubt enables a cre ditor to circumvent Act by taking a document for the interest due anil add ing it to the principal amount. Gwayer C. J. points out this difficulty at p_age 59 in the case Surendra Prasad Narain Singh v. Sri Gaiadhar Prasad Sahu Trust If the interpretation does not Estate and Others('). carry out the intentions of the framers of the Act by reason of unhappy or ambiguous phrasing, is for the Legislature to intervene. But far from doing so, it has the beneficient provisions of reiterates (I) A.I.R. 1942 Pat. 138, 139. (2) (1941) 193 I.C. 661. (3) I.L.R. 23 Patna 618. (4) [1940] F.C.R. 39. S.C.R. SUPREME COURT REPORTS 145 1951 the very next year after the construction acquiesced, during all these years which the Patna High Court has been placing upon section from the enactment the great obscurity of the statute. Having regard in the relevant provisions in the and the inaction of in our opinion, legitimate to infer that the view expressed by the Patna High Court is in accord with the intention of the Legislature. language employed the Legislature, is, Ramananitan Prasal Narayan Singh V• Mahanth Kapildeo RamJeeaud Another Chandrasekhara. Aiyar J. The appeals fail and are dismissed with costs, only one set in all of them together. Agent for the appellants: Tarachand Brij Mohanlal. Agent for the respondent : R. C. Prasad. Appeals dismissed RAI BRIJ RAJ KRISHNA AND ANOTHER v. S. K. SHAW AND BROTHERS. (SAIYID FAZL ALI, MEHER CHAND MAHAJAN, MuKHERJEA and CHANDRASEKHARA ArYAR JJ.J i95I Feb. 2. Bihar Buildings (J..rau-, Rent and Eviction) Co11:trol Act (Ill of 1947), s., 11-0rder of Controller for eviction on the ground of non-payment of rent- Suit to set aside order-Jurisdiction of civil cour:-Q11estion rtihc:her non-payment-Finai1ty of there was Controller' 1 tleeision. Section 11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, has entrusted the Controller with a jurisdic tion, which includes the jurisdiction to determine whether there is non-payment of rent or not, as well as the jurisdiction, on finding that there is nor.-payment of rent, to order eviction of a tenant. Therefore, even if a Controller has wrongly decided the question whether there has been non-payment of rent, his order for eviction on the ·ground that there has been non-payment of rent cannot be questioned in a civil court. Queen v. Comm_iuroners (21 Q.B,D. 313) and Colonial Bank of Australasia v. W1'llah S P.C. 417) relied on. for Special Purposes of Income·To1t (L.R.