SURESH CHANDRA BASAK Vs. BENODE LAL PAL

JUDGEMENT

(1.) THE respondents obtained against the appellants a final mortgage decree on 28th February 1939. In execution of this decree the mortgaged properties were sold on 6 July 1940. THE sale has not yet been confirmed nor have the decree-holders, who were the purchasers, obtained possession. On 19 September 1940, the appellant made an application for relief under Section 36, Bengal Money-Lenders Act. THE Subordinate Judge thereupon reopened the decree and has directed the amount which is legally recoverable in view of the provisions of the Bengal Money-Lenders Act to be paid by ten annual instalments. He has further directed that further proceedings in the execution case to be kept in abeyance. THE judgment-debtor has appealed to this Court. THE decree-holders have also filed cross- objections. THE only contention of the appellant in this appeal is that the Subordinate Judge should have set aside the sale. THE argument in support of this contention is that the final mortgage decree in execution of which the property was sold having been set aside and the decree-holders themselves being the auction purchasers the sale has been automatically set aside on general principles of law. But the object of the Bengal Money-Lenders Act is to give the judgment-debtor an opportunity to pay off the decretal amount by instalments after the sale and to keep the sale in abeyance for some time in order that the judgment-debtor may pay off the decretal amount by instalments. THEre is no provision in the Act for setting aside the sale under such circumstances. On the other hand, Clause (e) of Sub-section (2) of Section 36 goes to indicate that in default of the payment of the instalments ordered under Clause (d) of the said sub-section after the re-opening of the decree, the decree-holder is to be put in possession of the property sold. THE decree holder can be put in possession of the mortgaged property only on the basis of his purchase. If the sale was intended to be set aside after the re opening of the decree and the order for instalments under Clause (d) of Sub- section (2) of Section 36, it will not be possible to put the decree-holder in possession of the properties sold as he would have no title to the properties. In the absence of any express provision in the Act for setting aside the sale and in face of the implication to the contrary indicated above, it must be held that the Court has no jurisdiction under the Bengal Money- Lenders Act to set aside the sale. It is, however, clear from the provisions of Section 36 that the mortgagor judgment-debtor is entitled to be in possession of the property after the decree has been reopened and a fresh decree has been made and that so long as there has been no default of the payment of any instalment, the decree-holder has no right to interfere with the possession of the mortgagor. THE appeal, therefore, fails and is dismissed. THE cross-objection is not pressed and is, therefore, dismissed. Parties will bear their own costs in the appeal as well as in the cross-objection. Rau, J.

(2.) I agree.