S.R. Das Gupta, J. - (1.) This is an appeal against a decision of the District Judge, Jalpaiguri, upholding the decision of the Subordinate Judge, Jalpaiguri, in Miscellaneous Case No. 28 of 1948. There are three appellants before us and the appeal arises out of a proceeding started under section 38 of the Bengal Money Lenders Act.
(2.) On the 12th April, 1928, the respondent Indu Bala Gupta had pledged certain tea shares in favour of appellant No. 1 for Rs. 1500 which she borrowed from the said appellant. The due date for the payment of the said loan which carried interest at 15 p.c. per annum was 13th April, 1930. On the 31st March, 1983, according to the case of appellant No. 1, the amount due to him was Rs. 2125-8-0 and on that date he sold the pledged shares after giving due notice to the respondent. As there were no other purchasers ready to bid up to the amount of his claim the appellant No. 1 and his two brothers, Appellants Nos. 2 & 3 purchased the said shares for the said amount of Rs. 2,1258- After the said purchase, the appellants got their names registered in the company's register. On the 28th July, 1948, the respondent filed the present application under section 38 of the Bengal Money Lenders Act. Originally, the application was filed only against the appellant No. 1 who was the lender, but subsequently the other two appellants were made parties to the said proceedings. The question raised before the lower Courts was whether or not the two other appellants, that is, appellants Nos. 2 and 3, were benamdars of appellant No. 1 in the matter of the said purchase; in other words, the contention of the respondent in the Courts below was that appellant No. 1 was the real purchaser and he purchased it in the names of his said two brothers. The trial Courts came to the conclusion that the other two appellants were benamdars for appellant No. 1 and on that basis made a preliminary order under section 38 of the Bengal Money Lenders Act and appointed a commissioner to take accounts between the lender and the borrower of the transaction in question. The District Judge affirmed the decision of the said Court and it is against that decision that the present appeal has been filed to this Court.
(3.) A preliminary objection was taken by the respondent as to the maintainability of this appeal. It was contended by Mr. Bose that there was no right of appeal against the order passed by the Courts below. He pointed out that section 38(3) has made a provision for appeal, but that is against the declaration made under the said section. But as against a preliminary order passed under the said section, whereby a commission is appointed, there is no provision for any appeal. He therefore contended that this appeal should he dismissed on this ground.;