MANABODH PANDA Vs. SMRAJKUMARI MISRANI

JUDGEMENT

(1.) These two appeals arise out of an execution matter, and have been heard together. Miscellaneous Appeal No. 13 of 1944 is an appeal by the judgment- debtor from an order of the learned Subordinate Judge of Sambalpur dated 24-1- 1944 by which the learned Subordinate Judge has refused an application of the judgment-debtor, filed for certain reliefs under the Orissa Money-lenders Act, to set aside in effect a sale held on 15-8-1939. The other appeal, namely, Miscellaneous Appeal No. 30 of 1944 is an appeal by the decree-holder against the said order of the learned Subordinate Judge granting certain other reliefs to the judgment-debtor. As the two appeals have been heard together, this judgment will govern both of them.

(2.) The facts out of which these two appeals have arisen are shortly stated below. The judgment-debtor Manabodh Panda had executed a mortgage in respect of certain properties in favour of the decree-holder, Srimati Rajkumari Misrani, on 24-3-1927. Rajkumari Misrani brought a suit on the foot of the mortgage in 1935 and obtained a preliminary decree on 30-4-1937. This decree was made final on 4- 11-1938. The final decree was for a sum of Rs. 18,000 odd, out of which a sum of Rs. 7,000 represented the principal amount of the mortgage bond, and Rs. 11,000 odd represented interest. The final decree was put in execution, and on 7-8-1939, the judgment-debtor applied for certain reliefs under the Orissa Money-lenders Act (Act 3 [III] of 1939). This Act, so far as the relevant sections are concerned, came into force on 1-7-1989 throughout the province of Orissa; it could not, however, come into force in Sambalpur, which was a partially excluded area, in the absence of a notification under Section 92, Government of India Act, 1935. Such a notification was issued on 12-4-1940 by which the relevant sections of the Orissa Money-lenders Act, 1939, came into force in Sambalpur with effect from 15-4- 1940 subject to certain modifications. Therefore, the date on which the judgment- debtor filed his application for relief under the Orissa Money-lenders Act was a date on which the Orissa Money-lenders Act, 1939, had not come into force in Sambalpur. On 15-8-1939 the learned Subordinate Judge dismissed the application, on the short ground that the Orissa Money-lenders Act, 1939, had not been extended to Sambalpur. A sale was held on that date and the mortgage properties (some 800 acres of land) were sold for a sum of Rs. 10,000. The sale did not fully satisfy the decree and on 4-7-1942, a personal decree under Order 34, Rule 6 was obtained for a sum of Rs. 10,000 odd, In the meantime, the judgment-debtor had appealed against the order of the learned Subordinate Judge rejecting his application for relief under the Orissa Money-lenders Act, 1939, on 15-8-1939. This appeal was Miscellaneous Appeal No. 36 of 1939 of this Court and was disposed of on 18-9-1942. It was pointed out by this Court that the order of the learned Subordinate Judge dated 15-8-1939, was correct inasmuch as the Orissa Money-lenders Act, 1939, did not apply in Sambalpur till after the notification under Section 92, Government of India Act, 1935. Dealing with the question whether in view of the personal decree passed in 1942 the judgment- debtor was entitled to reliefs under the Orissa Money-lenders Act, 1939, this Court observed as follows in Miscellaneous Appeal No. 36 of 1939: It may be that the appellant can make out a case for relief under Sec. 11, Sub-section (2), Money-lenders Act, since that decree (the personal decree for Rs. 10,886) has not yet been executed and the Money- lenders Act now extends to Sambalpur. But, if so, the proper place for that prayer to be made is not here, but before the Court of first instance which can, if necessary, take evidence and enter into the merits. It appears to be open to the appellant to make an application now before the learned Subordinate Judge and I have no doubt that any such application, if made, will receive full consideration both from the legal point of view and upon the merits from the learned Subordinate Judge.

(3.) With these observations the appeal No. 36 of 1939 was dismissed by this Court. On 3-5-1943 the judgment-debtor filed his present petition for certain reliefs under the Orissa Money-lenders Act, 1939. This petition has been dealt with by the learned Subordinate Judge as per his order dated 24-1-1944, the order in question in the two appeals before us. The learned Subordinate Judge has held that under the provisions of the Orissa Money-lenders Act, 1939, it was not open to him to interfere with or set aside the sale held on 15-8-1939, inasmuch as the sale had been validly held before the Orissa Money-lenders Act came into force in Sambalpur. The learned Subordinate Judge has further pointed out that the decree-holder had taken delivery of possession through Court in February 1940, which was also before the Orissa Money-lenders Act, 1939, came into force in Sambalpur. The learned Subordinate Judge has expressed the view that title validly acquired by a sale held before the coming into force of the Orissa Money- lenders Act, 1939, could not be disturbed, because none of the provisions of the Orissa Money-lenders Act warranted such disturbance. In that view of the matter, he refused to set aside the sale but granted certain reliefs to the judgment-debtor in respect of the unsatisfied personal decree passed on 4-7-1942. The reliefs which the learned Sub. ordinate Judge has given to the judgment-debtor may be expressed in his own words: Interest was allowed at 12 per cent, per annum and it has to be reduced to 9 per cent. per annum and that the interest must not exceed the principal. The learned pleader of the applicants admitted that the interest now would be more than Rs. 7000 which was the principal. The opposite party is therefore entitled to recover Rs. 14,000 as principal and interest with costs of the original suit and of final decree and personal decree with future interest at 5 per cent, per annum as directed in the preliminary decree, on the costs, less the amount of Rs. 10,000 realised by the sale of the property.