Srimati v. Sri]adu Nath

Srimati Ashalata DeM and Others. v. Sri]adu Nath . Royfand Othe~s,. Tirlok Nath v. Moti Ram and Others (A.LR, 1950 East Punjab 149) referred to. CIVIL No. 69 of 1952. APPELLATE JurusmcTION : · Civil Appeal Appeai from the Judgment and Decree dated 27th April, 1950, of the High Court of Judicature at Calcutta (Sen & Chu!lder JJ.) in Appeal from Original Decree No. 19 of 1948 .arising out of the Judgment and Decree dated the 27th September, 1947, of the Court the· Subordinate Judge, Third Court of Zillah, 24- Parganas,. at Alipore in Miscellaneous Judicial Case No . 31 of 1947. Sukumar Ghose for the appellants. Bankim Chandra Banerji and R. R. Biswas respondents Nos. 1, 2, 8 & 9.

#1954. ·April 26. The Judgment of the Court was delivered by . ~· - BHAGWATI J.-This is an appeal against ment and decree of the High Court of Judicature at the order of the Third Subordinate Calcut~a reversing the respondents' applications Judge, Alipore, dismissing for re-restoration of certain immovable properties. · One. Romesh Chand~a Acharji Choudhury (deceased) predecess~r-in-interest of. th~ appellants borrowed on the. 16t.h August, 1918, Rs. 1,60,000 and Rs. 73,000 respondents from, und~r".two. deeds .~f m?rtgage. There beipg default paym~nt of the mortgage amoun~s. a suit to realise mortgage;; secmriti~s wasJiled on the 10th. March, 1926, t~e . predece,s~ors-in-interest of J .... ' 1 954 . Srimati· Ashalata Debi and Others . v. Sri Jadu Nath Roy and Ot!iers. Bhagwati J. 152 SUPREME COURT REPORTS [1955] in the Thitd Subordinate Judge's Court, Alipore. A preliminary mortgage decree for Rs. 4,21,851-1.Q was passed on the 4th April, 1929, and a decree absolute for sale was passed on the 13th September, 1929. · The in execution mortgaged properties were put up for sale in 1930 and the decree-holders purchased proceedings the properties at auction sales on the 29th February, 1932, and the 23rd April, 1935, for an aggregate amount of Rs. 2,35,200. These sales were duly confirmed and the auction-purchasers took delivery of possession of different items of property on different dates between the 25th June, 1933, and the 9th March, 1936. The decree-holders obtained on the 13th December, 1937, a personal decree under Order XXXIV, rule 6, of the Civil them, viz., Procedure Code for the balance due Rs. 3,30,903. This personal decree was also executed and some properties of the mortgagors were purchased the 8th August, 1939, for Rs. 3,899 and delivery of possession of these properties was duly given to them on the 6th July, 1940. the decree-holders on Kshitish Chandra Acharji Choudhury, since deceased, the predecessor-in-interest of the appellants Nos. 1 to 3 and Jyotish Chandra Acharya Choudhury, the appel lant No. 4, sons of the mortgagor filed on the 9th December, 1940, a petition under section 36 of the Be~gal Money Lenders Act (Act X of 1940) for reopen ing the ·mortgage decree and the personal decree. By an order dated learned the decrees and on the Subordinate Judge 10th May, 1943, passed a new decree for a sum of to be Rs. 3,76,324-12-4. The paid by the judgment-debtors fifteen equal annual instalments. He also directed the restoration of the properties purchased by the decree holders. sum was directed to the decree-holders the 25th August, 1941, reopened The present respondents preferred, on the 19th June, the High Court of Judicature at 1943, an appeal Calcutta and crosg,.objections . were the said appel- Kshitish Chandra Acharji Choudhury lant No. 4. By judgment and decree dated the 29th June, 1944, the High Court affirmed the decree of the Court below with some substantial variations and filed by • .,, 1 ~ '.· · 1954 Srimati Ashalata Debi and Others v. Sri Jadu Nath Roy and Others. Bhagwati J. S.C.R. SUPREME COURT REPORTS 153 to put possession successive annual the mortgagors they had purchased and render to in favour of the mortgagors. The in · passed a new decree mortgagees were ordered possession of all the properties execution of the reopened decrees an account of the mesne profits of tho5e properties from the 15th September, 1941, they restored or relinquished the mortgagors of those properties. The sum of collection papers of the mort Rs. 3,76,324-12-6 was declared to be due by gagors to the mortgagees and the mortgagors were to pay the same in twenty equal annual instalments first of such to be paid on or before instalments the mortgagees first anniversary of the date on which restored or relinquished possession of all t_he properties · purchased by them in execution to the mortgagors or they delivered to the mortgagors of the date on which therein mentioned, whichever the collection papers as date was later. The mortgagors were to pay instalments on or mortgagees before the same date of the succeeding years on which the first instalment became payable and they were also to pay the annual revenue of the aforesaid properties restored to that would become payable after they were possession kist by kist, as they fell due, at least days before the kist dates and file the challans Court below in proof of payment within ten days of the payments. The road, public works and education cesses and rent due to the superior landlords were also to be paid similarly by the mortgagors and in default of payment of any one instalment or cesses or rent the mortgagees were entitled within the time prescribed, to get back possession of the said properties from the mortgagors and in that event the sum of Rs. 2,39,099 those proper at which the mortgagees had purchased ties would be balanced against the amount then due to the decree. If thereafter any amount still them under remained due to the mortgagees under the decree they in the Court below for a decree were entitled to apply for the balance under Order XXXIV, rule 6, of the Civil Procedure Code. An enquiry was ordered into the mesne profits for the period between the 15th September, 1941, till the restoration of possession to the mortgagors and 20 -

1.'54 SUP.REM# GQlJR,T RJ</P(),R;TS Siifrulti ·.Ashalata 'Debi--'and 'Others •V. Sri Jadu·Nath Roy Qnd-OthBrs. Bhagwati ·y. the. mortgagors., w~re at liberty to set, .. off .tli.~ . an; iount that might. . be deneed in their .faxour for mesne , profits towards which the amount. was declared .by. t4e Court below and the next succeeding years till the said amount was wiped off. that fell. due •ii;i the .. year the ,instalment Possessioff was delivered to .the mortgagors on the 5th October, 1944. The ddivery of the collection papers was however given on the 28th March, 1945. to have .committed default The ·mortgagors were alleged in the payment of .the second instalment which was due in any event on the 28th March, 1947, and also in the payment of the revenue kist and the cesses .which were due on or about that date. The mortgagees there" fore made applications in the Court of the Third Sub ordinate Judge at Alipore on the 6th September, 1946, re-restoration of and the 18th April; 1947, asking for the properties. -Several defaults were alleged but only two defaultnvere pressed, one in regard to the payment of· the second instalment which 'was due oh the -28th the payment March, 1947, and of the revenue and the cesses of the Noal>hali properties due also on the same date. The . learned ' Subordinate Judge rejected these applications by his order . dated the 27th September, 1947, holding that "there was no default in the payment of revenue and cess and in payment of the second instalment though the default it had accrued was due "to the wrongful acts of the the decree-holders decree-holders were not entitled· to take advantage of their own wrong. An appeal was preferred to the High Court of Judica ture at Calcutta. The appeal· was allowed on the 27th April, 1950. The High Gourt held that a default had been committed by the mortgagors and ordered re restoration of the properties. This appeal has been filed against tliat order of. the High Court with certificate under article 133(-f)(a) of the Constitution. the other in regard to themselves and that Shri S. Ghosh appearing for the appellants before the bulk of the properties which were Us urged the .. subject'matter of the new decree ·had gone to the 26th January, · 1950, being situated Pakistan after in East Pakistan and the High• Court at Calcutta had ' 1 - S.C.R. SUPREME COURT REPORTS 155 January, 1950, no the appeal and jurisdiction after the 26th power to determine to pass an order in foreign relating to the immovable properties situated territories. He further the order of re restoration of the properties was not appealable and in any event no default had been committed by the mortgagors. In support of his first contention reliance was placed (Legal the Indian Independence on paragraph 4(2) of Proceedings) Order, 1947, which ran as under :- 1954 Srimati Ashalatt> Debi and Others v. Sri Jadu Nath Roy and Others- Bhagwati J. transfer of certain "4. Notwithstanding the creation of (2) Any appeal or application for revision certain new territories from Provinces and the the Province of Assam to the Province of East Bengal by the Indian Independence Act, 1947, ............... . pect of any proceedings so pending in any such Court shall lie in the Court which would have appellate, or as revisional jurisdiction over that Court the case may be if the proceedings were in that Court after the appointed day ; .................... " instituted - Indian that . is The applications for re-restoration of the properties were pending before the Third Subordinate Judge at Alipore on the 15th August, 1947, and they were saved by the provisions of paragraph 4(1) which provided for the continuance in the same Court of these proceedings Independence Act, as if the said Act 1947, had not been passed. But he contended the appeal which had paragraph 4(2) did not save the 15th August, been filed by the mortgagees after 1947. We cannot accept this contention of the appel lant. Paragraph 4(2) provided for appeals or applica in respect of proceedings which were tions for revision pending in the Courts after the 15th August, 1947, and these proceedings by way of appeal or laid down that applications for revision could lie in the Courts which jurisdiction over would have appellate or in that that Court Court after the 15th August, . 1947. It was contended that for the purpose of this provision. the words "if the ·instituted· in . that O:mrt" ... should· be~ proceedings were read as meaning "if the proceedings cout4 have; . been 11-86 S. C. India/59 if the proceedings were instituted revisional 1954 Srimati Ashalata Debi and Others v. Sri Jadu Nath . Roy and Others. Bhagwaii]. 156 SUPREME COURT REPORTS [1955] jurisdiction as if the purpose of the appellate or instituted in that Court." This certainly could not be the meaning, because by reason of the transfer of the territories no proceedings in respect of the properties to Pakistan could ever have been which had gone the 15th August, 1947, in the Courts maintained after concerned. The only construction which could be put upon this provision was that the Court having appel late or revisiona! jurisdiction over that Court would the proceedings had been have such that Court after the 15th August, 1947. instituted For revisional jurisdiction that Court had to be treated as the Court the proceedings could and should have been in which that if the pro instituted and it goes without saying treated as having been properly ceedings could be instituted that Court the only Court to which appeal or the application for revision could lie was Court which then had appellate or revisional jurisdic In the case before us no pro tion over ceedings could have been the Third Subordinate Judge's Court at Alipore in respect of the properties which had gone to East Pakistan after 15th August, 1947. But by reason of the these proceedings were pending in that Court on the High Court of Calcutta the 15th August, 1947, which had appellate or revisional jurisdiction over that Court was: prescribed to be the Court in which appeal or the application for revision .in respect of such proceedings would lie, because that Co\Jrt, that is Third Subordinate Judge's Court at Alipore, was treat- ed as the Court in which such proceedings could and sh011Jd have been the 15th August, instituted after 1947. that Court. instituted I- - ... • Learned counsel respondents drew our attention to the case of Tirlok Nath v. Moti Ram and Others('). In that case a suit for possession of land at place A was filed in Court at B in 1943. On the 15th August, 1947, the suit was pending before the Court at B which dismissed the suit in 1948. An appeal from the decision was filed in the East Punjab High Court ~ . - as the place B was included in the East Punjab. On (1) A.I.R. 1950 BlSt Punjab 149. 1954 Srimati Ashalaia Debi and Others v. Sri Jadu Nath Roy and Others. Bhagwati]. ,.._ ,·,.... ._µ S.C.R. SUPREME COURT REPORTS 157 .• ~ ence .... ..:i jurisdiction of the High Court objection regarding taken on the ground that the land in suit was at A, now included in Pakistan, the High Court held that the suit being pending at place B on 15th August, to the 1947, appeal from the decision of that Court lay East Punjab High Court and not to Lahore High Independ- Indian Court under paragraph 4(2) of (Legal Proceedings) Order, 1947. This decision the case before us and we are of is on all fours with the opinion that the contention urged on behalf of the appellants is untenable. truth and lay against the appellants the orders because The next contention of applications in the suit for a the 29th June, 1944. The only is equally untenable. The Calcutta High Court considered these applications special remedy given under a special law and held that the rules of the Code of Civil Procedure applied and an appeal they were decrees within the definition of section 2(2) of the Civil reasoning. Procedure Code. We cannot accept this These applications were in substance applications for execution of the new decrees which had been passed in favour of the mortgagors by High Court on new decree was to apply for execution of the decrees on default committed by applications made by the mortgagees the Court of the Third Subordinate Judge at Alipore were really for execution of the decree applications though not the proper form and could be treated as couched such. treated as such it is dear that on such applications for execution were sustained on lay against these orders. applications in this contention of appealable and no objection could be the ground Treating for execution we see no substance the appellants. that no appeals applications to the mortgagees under the mortgagors and If they were therefore as terms of ./ orders passed r competent ).. .:( , decision of If the matter is approached tion could be urged by in this way no objec the High Court. The executing Court could not go behind the decree and it is dear on the facts default was committed by the appellants against the mortgagors both '954 Srimati Ashalata Debi and Others v. Sri Jadu Nath Roy and Others. BhagwatiJ. 158 SUPREME COURT REPORTS [1955J regard to the payment of the revenue and also the second instalment under the new decree. the cess as The contention which was therefore urged on behalf that there was no default committed of the appellants by the mortgagors also could not be sustained. "---· ,, in carrying out decide whether The High Court of Judicature at Calcutta was there jurisdiction fore rightly seized of the appeal . and it had committed the mortgagors had default terms of the new decree. The appeal being a mere rehearing the appellate Court the judgment of the trial Judge was entitled to review the decree and declare th~t it was wrong . and re-restoration. The question holder. was entitled to obtain possession of the whether he would be able to such an immovable properties in another juris enquiry. By appropriate proceedings this difficulty diction he may be able could not be a deterrent to the High Court passing re-restoration of the properties. necessary orders for in fact was foreign to do so ; but The appeal therefore fails and must stand . dismissed. There will be no order as to costs. Appeal dismissed. 1954 May 13 TOLARAM RELUMAL AND ANOTHER v. THE STATE OF BOMBAY. [MEHR CHAND MAHAJAN C.J., MuKHERrEA, VIVIAN BosE, BHAGWAn and VENKATARAMA AYYAR JJ."I Bombay Rents, ·Hotel and Lodging House Rates Control Act~ 1947, (Bombay Act LVII of 1947)-Section 18(1)-Words "in res pect ·af"-Meaning of-Receipt of nioney 'by landlord 01· any person on his behalf-On executory 'co'fitract-W hether punishable under the Act. -,- Section 18(1) of the Bombay Rents, .......... Control Act 1947 provides:- "If any landlord either himself or through any person actin& " j or r.urporting to act on his .behalf . ......... receives any fine, pre·- / mium Or other like sum or deposit or any cO~sideration, other tha,n