TMI Blog1943 (3) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... he suit the plaintiff was appointed the Receiver of the mortgaged properties on certain terms which I need not refer to. In October 1939 the defendant Pradyumna entered into an agreement with the petitioner for the sale of his equity of redemption in the Cossipore properties to the petitioner for ₹ 77,000 free from encumbrances and received ₹ 5001 as and by way of earnest money. The plaintiff promptly intervened and obtained an order on 19th January 1940 directing the defendant Pradyumna to deposit the sum of ₹ 5001 with his attorneys Messrs. N. E. Mondal Co., within one month and providing that the plaintiff should agree to the sale being effected to the petitioner on the terms of the agreement of 1939 to which I have referred. The defendant Pradyumna deposited the sum of ₹ 5001 with his attorneys Messrs. N. E. Mondal Co. The plaintiff has since obtained payment of this amount from the attorneys. On 2nd August 1940, a preliminary decree was passed in this suit by and with the consent of the plaintiff and the defendant Pradyumna. By this preliminary decree it was declared by consent that the properties mentioned in the schedule annexed to the plaint w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eed rate of interest was allowed in the decree. The Act came into force in September 1940. On 8th April 1941 the Registrar made his report finding that ₹ 95,794-9-6 would be due to the plaintiff on 20th October 1941. Bengal Money-Lenders Act 1940, having come into operation, the Registrar, in taking the accounts and arriving at the amount due, calculated interest at 8 per cent, per annum simple, the plaintiff having agreed to forgo the balance of interest. On 15th October 1941 the petitioner who had agreed in 1939 to purchase the Cossipore properties from the defendant Pradyumna paid ₹ 12,000 to the plaintiff and obtained an extension of time till 25th November 1941 for payment of the balance. The defendant Pradyumna having from time to time obtained the total sum of ₹ 26,697 from the petitioner, executed a conveyance on 8th January 1942 in favour of the petitioner in respect of the Cossipore properties subject to the payment of the balance that would be payable under the aforesaid preliminary decree for the redemption of the Cossipore properties. It also appears from the record of this suit that the defendant Pradyumna had also transferred his equity of redemptio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... engineer and valuer to value the properties sought to be sold. Mr. Sreemany surveyed the properties and sent in his survey and valuation reports. Thereafter the notification and conditions of sale and abstract of title were settled by the Registrar and the sale was fixed for 16th December 1942. It was directed that the Cossipore properties would be sold in one lot. The specified price was fixed at ₹ 50,167. It will be necessary to refer to the minutes of the proceedings before the Registrar and the reports of Mr. Sreemany in detail hereafter. 6. On 16th December 1942 the sale was adjourned and eventually the sale was fixed for 20th February 1943. It is alleged by the petitioner that the plaintiff received interest subsequent to the decree and consented to the sale being adjourned. The plaintiff denies having received any interest and states that he was induced to agree to the adjournment only by reason of the earnest importunities of the petitioner. The figures of charges, costs and interest set out in the schedule and included in the decree are not certainly calculated to inspire any very great confidence in this denial of the plaintiff but I do not lay any stress on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t application has commented on the statement of the plaintiff that he knew nothing of any assignment as a mere pretence and has urged that the attitude disclosed by the assertion of the plaintiff that he was not bound to assign the mortgage really points to the truth of the petitioner's version that the plaintiff put the screw on the petitioner by demanding an extra sum. It may be likely, in the circumstances, that the petitioner's story is true but I cannot say that I can act upon mere suspicion or probabilities. Nor do these allegations seem to me to be very material for the purpose of this application. On 20th February 1943, the Registrar held the sale and declared one Kanhailal Lohia as the highest bidder and purchaser of the Cossipore properties at and for ₹ 1,10,000. The purchaser is represented before me by Mr. S.P. Choudhury instructed by his attorney Mr. Sushil Sen. On 8th March 1943 the petitioner took out the present summons for the following orders: (a) That the sale held on 20th February 1943 be set aside. (b) That the decrees passed in this suit on 2nd August 1940 and 20th March 1942 be re-opened and fresh decrees be passed under the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing two separate applications, namely one for leave to pay into Court the requisite amounts and the other, after payment, for setting aside the sale, both the applications were within Rule 89 and as the petitioner did not withdraw his application under Rule 90, both the prayers (c) and (d) must be withdrawn or dismissed before the petitioner can proceed with his application under Rule 90 Mr. Ghose contended that the petitioner must elect here and now and relied on Sarvi Begam v. Ram Chandar Sarup AIR 1925 All 778 . 10. The argument had not concluded but it appeared to me that this application raised several points of importance and complexity and I accordingly adjourned the application to Court and directed that it be placed on the next day's list. On the matter being called on for further argument on the 18th instant, I put to Mr. Ghose three propositions, namely: (1) Was prayer (a) of the summons wholly based on Rule 90 or was it based partly on Rule 90 and partly on Section 47, Civil P. C? In so far as it was not based on Rule 90, did it attract the operation of Rule 89(2)? (2) Even if Order 21, Rule 89 applied to prayers (c) and (d), must these prayers be withdrawn or di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hdraw his application under Rule 90, then the application under Rule 89 must be either withdrawn or dismissed. He relied on the case in Sarvi Begam v. Ram Chandar Sarup AIR 1925 All 778 . The head-note of that case does support Mr. Ghose's contention but a perusal of the judgment will show that the head-note is not quite accurate. What happened in that case is that the judgment-debtor at first applied under Rule 89 but it was defective as the deposit was slightly short. While that application Was going on, and was being argued he applied under Rule 90. The Subordinate Judge dismissed the application under Rule 89 on the merits and then he dismissed the other application, namely, the one under Rule 90, on the ground that the judgment-debtor by proceeding with his application under Rule 89 must have presumably withdrawn the application under Rule 90. This decision was overruled by the High Court and the learned Judges observed: It seems to us that the Court ought to have called upon the applicant's counsel to make his election either to withdraw his application under Rule 90 or not. If he declined to do so, the Court should not have allowed him to press his application, un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore me is that reported in Sarvi Begam v. Ram Chandar Sarup. I have tried to explain that that decision does not support this extreme contention of dismissal. If that case can be taken to lay down the principle that dismissal is obligatory I would say respectfully that it was not necessary for the learned Judges, on the facts, of that case; to lay down any such principle. I do not overlook the case in Rajendra Nath Haider v. Nil-ratan Mitter 23 WB. 958 where a Bench of this Court upheld the dismissal of an application under Order 21, Rule 89 merely on the ground that another application under Order 21, Rule 90 had been made subsequently. That case was decided under the old Code and at a time when the notion was that an application under Order 21, Rule 90 worked as a permanent disqualification against an application under Order 21, Rule 89. Now that the subsequent cases have established that a subsequent application under Order 21, Rule 89 is competent even after an application under Order 21, Rule 90 has been dismissed or withdrawn, provided it is within time, the old decisions upholding dismissal of application under Order 21, Rule 89 on account of an application under Order 21, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d at, it did not fall within Section 311, but it must be regarded as an application under Section 244. What is the position now before me? The suit is a suit on a mortgage. The petitioner is the assignee of the mortgagor and as such entitled to all the special favours that a Court of equity has from old times shown to mortgagors in helping him to redeem his property. I find a provision in Order 21, Rule 89 giving a locus penitenti to all judgment-debtors whose property has been sold in execution of a decree. I find also a provision in Order 34, Rule 5 giving a locus penitenti to a mortgagor judgment-debtor whose property has been sold in execution of a mortgage decree for sale. On reading the two provisions I find that the provisions of Order 34, Rule 5 are more extensive and beneficial. It is an elementary principle of construction of statutes that when in one and the same statute there is a provision which applies to all persons and there is another provision which applies only to a particular class of persons, the former should be regarded as the general provision and the latter should be regarded as the special provision. On this principle when the mortgagor defendant appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s (c) and (d) upon. Should I still dismiss these prayers? I think not. In my opinion, Order 34, Rule 5 is an appropriate provision under which the mortgagor defendant whose property has been sold in execution of a mortgage decree for sale, can apply to have the sale set aside and to have a reconveyance, and I think the judgment-debtor can fall back upon Order 34, Rule 5 if his application fails under Order 21, Rule 89. If he can fall back upon Order 34, Rule 5 then Sub-rule (2) of Rule 89 will have no application and no question of election will arise at all. There is no such provision in Order 34, Rule 5 as in Order 21, Rule 89(2). In these circumstances I am willing to treat this application, if necessity arises, as one under Order 34, Rule 5. On this ground also I am prepared to allow the petitioner to retain prayers (c) and (d). 15. To summarise, I hold : (1) that the application in so far as it seeks to set aside the sale on grounds not covered by Order 21, Rule 90 may be combined with the application in so far as it seeks to set aside the sale on payment of the requisite amounts; (2) that if prayers (c) and (d) be treated as one under Order 21, Rule 89 it need not be dismi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provided for payment of the whole amount within six months after the report of the Registrar was. countersigned and in default of payment for liberty to the plaintiff to apply for a final decree. It is true that provision was made for redemption of the Cossipore properties on payment of half of the amount but I do not think that this circumstance made it any the less a preliminary decree under Rule 4 of Order 34. I did not understand Mr. Ghose to contend that it was not a preliminary decree under Rule 4 of Order 34. This decree was passed by consent and at a time when Pradyumna was the sole defendant. Pursuant to this decree the Registrar took the accounts and made his report. Pradyumna having sold his equity of redemption to the petitioner in respect of the Cossipore properties and to Sm. Bhabatarini Dassi in respect of the Calcutta properties, these two purchasers were added as parties defendants. Then the plaintiff applied for a final decree. The defendants Pradyumna and Sm. Bhabatarini Dassi did not appear. Petitioner alone appeared and opposed the application and it is common ground that he prayed for reliefs under the Bengal Money-Lenders Act, 1940. Then the decree was passe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed, interest will have to be calculated up to the date of the new preliminary decree. There will, of course, be no further interest after this date. I do not think there is any substance in this part of Mr. Das Gupta's argument. He next argued that the Court had no jurisdiction to provide for payment within six months in monthly instalments and that it was bound to give annual instalments. He contended that the Court had no jurisdiction to direct a sale straight away and thereby deprive the petitioner of the benefit of the provisions of Clause (a) (ii) of Sub-section (1) of Section 34 or of Order 34, Rule 4. In short he contended that the new decree is not in terms of Section 34(1) (a) and the Court had no jurisdiction to pass any new decree in any form other than what is indicated in Section 34(1) (a), Bengal Money-lenders Act, and therefore this decree was a nullity and the sale held thereunder was also a nullity. 22. Mr. Ghose contended and in this he was supported by Mr. Sen that the Court did not pass a new preliminary decree at all. It passed a final decree as the heading of the decree shows. I do not think that the quality or nature of the decree can be determine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assed by consent and in truth it could not be passed by consent as regards two of the parties, namely, Pradyumna and Sm. Bhabatarini Dassi who did not appear on the application at all. It appears to me, however, that the parties appearing agreed to the figures and the manner of payment and learned counsel for the parties appearing stated to the Court the terms agreed to between the parties appearing and asked the Court to pass a decree on those terms, but as two of the defendants did not appear the decree was drawn up as having been passed by the Court of its own motion. Anybody familiar with the practice of the original side is familiar with this practice of handing in papers headed agreed minutes and not terms of, settlement. A decree was drawn up incorporating these agreed minutes as if the decree was passed in invitum. Although here I find a decree which on the face of it does not purport to be a consent decree yet, having regard to its terms, I cannot take it as a decree passed in invitum especially as between the plaintiff and the petitioner, and I am bound to treat it as a consent decree as between them. I may here mention that if this decree were to be treated as a decr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to me that the ultimate test is whether the particular statute or the particular provision in that statute is based on grounds of public policy or whether it was intended only for the benefit of a particular person or class of persons. If it is based on grounds of public policy it is obligatory and cannot be waived and a contravention of such a provision must be a nullity. On the other hand if it is not based on grounds of public policy but is intended only for the benefit of an individual person or class of persons then it is only directory and can be waived, because every one has a right to agree to waive the advantage of a law or rule, made solely for the benefit and protection of the individual and a contravention of such a provision will amount only to an irregularity. It was on this principle and relying On the above cited authorities that in Ashutosh Sikdar v. Behari Lall 5 Cal. 61 a sale held in contravention of Section 99, T. P. Act, was held to be an irregularity, and not a nullity. The judgment of Mookerjee J., in that Full Bench case is indeed; instructive and helpful. It was on this principle that a composite decree passed in a mortgage suit with the consent of partie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... controlled and the whole object of the Act will be frustrated. In my opinion, therefore, this Act is enacted not merely to give relief to the debtor but is enacted to secure control over money-lenders and broadly speaking most of its provisions are based on grounds of public policy. It does not however follow that because the Act is generally based on public policy every provision contained in it must be mandatory or cannot be waived. Section 34 is, to my mind, a typical example of a provision which, although it is contained in an Act generally based on grounds of public policy, is really capable of being waived. It is true that it opens with the usual formula notwithstanding anything contained in any law for the time being in force, or in any agreement and during arguments I was inclined to think it was based on grounds of public policy. On carefully going through the section, however, I find that the provisions of this section come into play only on the application of the defendant. 29. If the defendant does not appear in the suit, the Court is not called upon to pass a decree in the form mentioned therein. If the defendant appears in the suit but does not invite the Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... namely, in Mannalal v. Nehalchand 41 C.W.N. 1133, Panckridge J., did not agree that two applications were necessary but he certainly expressed the View that the practice was for the plaintiff to apply for execution of the decree on notice to the judgment-debtor and to file a petition alleging default. Thus I find that the usual practice is that at least one application is commonly made to mark, as it were, that the default had taken place and that the decree should now be executed. I find that even in mofussil cases the practice is to apply for an order when the condition has not been fulfilled: see Kashichandra v. Priya Nath Bakshi AIR1924Cal645 . In the case now before me the plaintiff did not make any application but proceeded to take steps before the Registrar. The failure to apply for a final order before putting up the properties to sale was certainly an irregularity having regard to our practice. The question is does such irregularity vitiate the sale as having been held without jurisdiction. At one time I was inclined to think it did. But on mature thinking I have come to the conclusion that it does not. The practice of making a final application to adjudge the default is o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eedings before the Registrar his Lordship proceeded.) On the materials before me I am satisfied that objection was taken on these grounds and it is open to the petitioner to rely on them for setting aside the sale. 34. The plaintiff not having obtained liberty to bid the Registrar had not to fix any reserve price. The valuation of Mr. Srimany was ₹ 50,167 and the plaintiff's claim was about ₹ 55,000. So the Registrar fixed the specified price as ₹ 50,167 and directed sale of the entire properties. The direction for sale of the entire properties was the necessary consequence of the valuation at ₹ 50,167 having regard to the claim. I have no doubt in my mind that the properties had been grossly undervalued. The petitioner himself had purchased them at about ₹ 77,000. At the sale the properties fetched a price of ₹ 1,10,000. It is difficult to have better proof of the real value. Further the report of Mr. T.K. Ghose has not been shown to be wrong in any way. I cannot act on the bare assertion of the plaintiff. Mr. Srimany's report does not take into consideration the structures on plot No. 2 at all. Those structures alone have been valued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... separately then one of them may have fetched the specified price and then the sale might have been stopped as regards the other properties which would have been saved to the petitioner. Mr. Ghose and Mr. Sen have severely commented on the supporting affidavits. The way they have been drawn up invited those criticisms but I do not think they are altogether bogus affidavits. Both these persons had their own attorneys. There was admittedly an interview in the office of Mr. S.C. Mitter where one of these intending purchasers was present. With the other there was an interview in the office of Mr. Himatsingka. While there, fore conceding that the inartistic way in which the affidavits have been drawn up deserves the comments, I cannot overlook or ignore them altogether. It has not been suggested, far less proved, that these men are not of any substance. Objections (c) and (d) have not been pressed and I need say nothing about them. The result is that I hold that the applicant has made out a case under Order 21, Rule 90 and I set aside, the sale held on 20th February 1943. In view of this, I do not deal with the other prayers. Applicant to get costs of this application from the plaintiff ..... X X X X Extracts X X X X X X X X Extracts X X X X
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