MOTI DEI Vs. CUTTACK BANK LTD

JUDGEMENT

(1.) MOTI Dei, one of the judgment-debtors, is-the petitioner. The fate of the revision depends upon a narrow point. The judgment-debtors filed an application under sections 10 and 11 of the Orissa Money Lenders Act for re-opening and scaling down the decree. It was dismissed on 17-8-1961 by Sri S. K. Misra, Subordinate judge, Cuttack. A memorandum was filed by the advocate for the judgment-debtors on 21-8-1961. The same learned Judge considered the memorandum and held that the petition of the judgment-debtors was without merit. On 27-11-61 the judgment-debtors filed another application under Sections 10 and 11 of the Orissa money Lenders Act for scaling down the decree on the ground that the decree, as defined in Section 2 (g) of the Orissa Money Lenders Act, includes both a preliminary and a final decree, and that the calculation of payments till the passing of the final decree on 20-11-1950 is to be taken into consideration to determine whether the final decree is hit by Section 10 (1) of the Orissa Money Lenders Act. On this application, a Misc. case No. 173 of 1961 was started. On 22-12-1961 Sri s. Naik, Subordinate Judge, passed the order-

(2.) SRI Sarkar dismissed the application on two grounds. Though he came to a categorical finding that the Court did not pass any order regarding the petitioner's lawyer's memorandum for accommodation, and seems to have heard and further heard the Miscellaneous case in his chambers in the absence of the petitioner's lawyer, which was irregular, the order dated 23-12-1961 must have been pronounced in open Court and that the Court cannot recall such an order. He further held that as the subject-matter or the application under Sections 10 and 11 of the O. M. L. Act in Misc. Case No. 173 of 1961 had already been disposed of in order No. 116, dated 18-8-1961, the matter cannot be reagitated again.

(3.) BOTH the grounds given by the learned Subordinate Judge, are insupportable. The second ground is wholly fantastic. Once a party files an application alleging therein certain matters for consideration, the Court is bound to hear the party. It is open to the Court to reject the party's contention, but it is not open to the Court to say that the, party is not entitled to hearing as the identical matter had been decided by a previous order. The point raised by Mr. S. K. Ray also deserves consideration. The matter was fully discussed in Sarat Chandra Deb v. Bichitranada Sahu, AIR 1951 Orissa 212. There is sharp cleavage of opinion between the Judges constituting the Bench. It was not open to the learned subordinate Judge to say that the matter had been decided by a previous order and so the point could not be reagitated without hearing both parties.