Das Gupta, J. - (1.) The question in this case is whether the petitioners' suit under section 36 of the Bengal Money Lenders Act should fail, because of the provision of sub-section 5 thereof protecting an assignee for value in certain circumstances from the operation of the Act. The decree which the petitioners want to have reopened was passed in circumstances which may conveniently be described in the words of the judgment of this Court in the case of Sailen Chand Dutt v. Promode Kumar Roy, (53 C.W.N. 631), in the appeal against that decree: "On the 9th June, 1927, the Defendant No. 2, Jogesh Chandra Chunder executed a simple mortgage bond in favor of Defendant No. 1. Sailen Chand Dutt, in respect of premises Nos. 9 and 10, Karim Bux Lane, to secure a loan of Rs. 15000 with interest at Rs. 10 per cent per annum with quarterly rests." On the 26th November, 1928, the Defendant No. 1, borrowed from the Plaintiffs Rai Taritbhusan Roy Bahadur and Pulin Krishna Roy, a sum of Rs. 6,000 on a promissory note, with interest at 10 per cent per annum with quarterly rests and as collateral security deposited the said mortgage bond dated the 9th June, 1927. On the 23rd July, 1930, the Defendant No. 1, borrowed a further sum of Rs. 1,431-10 annas only and to secure the sum due on his original loan and the new advance aggregating a sum of Rs. 8,500 executed an indenture of English mortgage, agreeing to pay interest at 10 per cent per annum with quarterly rests.
(2.) The Defendant No. 1 sued Defendant No. 2 on his mortgage in Title Suit No. 209 of 1930 and recovered a preliminary decree on the 31st July, 1931, which was made final on the 16th May, 1932, for a sum of Rs. 18,741 annas 4 only. In execution of this decree the Defendant No. 1, auction-purchased the said mortgaged properties for Rs. 11,500 on the 14th August, 1937, in Title Execution Case No. 107 of 1935.
(3.) On the 30th July, 1932, the Plaintiffs sued for enforcement of their mortgage in Title Suit No. 189 of 1932, impleading Defendants Nos. 1 and 2. On the 18th August, 1933, the plaintiffs obtained a preliminary decree. The preliminary decree as drawn up did not reserve a liberty to apply for a supplemental decree under Order 34, rule 6, Civil Procedure Code. By an order, dated the 23rd June. 1934, the preliminary decree was amended and the Plaintiff was found to be entitled to recover Rs. 9,094 annas 7 only as principal with compound interest at the bond rate up to the 30th January, 1932, with further interest at 6 per cent per annum till realization. The amended preliminary decree was made final on the 7th July, 1934. In execution of this decree the plaintiffs auction-purchased the said properties for Rs. 11,565 on the 26th January, 1938, in Title Execution Case No. 33 of 1937. This sale was set aside on the 7th January, 1939, as a result of proceedings under Order 21, rule 90, Civil Procedure Code. Meanwhile on the 13th June 1936, the deity Sri Sri Sridhar Salagram Thakur, through one of the Shebaits filed a suit (Title Suit No. 1 of 1936. 1st Additional Subordinate Judge at Alipore), against the plaintiffs Defendants Nos. 1 and 2. On the 24th March, 1938, the Court by its decree declared inter alia that the said mortgaged properties were inalienable debuttar property of the deity, that the mortgages in favor of the plaintiffs and Defendant No. 1 were not binding on the deity, and that the decrees passed in Title Suits Nos. 209 of 1930 and 189 of 1932, were not binding on the deity.;