On September 7, 1940, a personal decree for Rs.
Against this decree, an appeal was preferred to the District Court, Midnapore.
1,431 15 0 passed by the Subordinate Judge.
The respondent who was directed to pay the amount by instalments under the orders of Mitter, J. made default in payment, and a money execution case was ,started against him.
5,000/ plus companyts was passed against the respondent.
But the High Court in Second Appeal ordered that the preliminary and final decrees be reopened and the case be remanded to the trial companyrt for passing a fresh preliminary decree.
4,160/ was paid, I find numbernecessity of cancelling the sale and ordering restitution, but for the balance of Rs.
Mondal then applied for a personal decree under 0.
In 1941, execution of that decree was taken out.
2,338,15,0 against Mittra.
This decree was made final on February 25, 1938.
The respondent appealed, and the appellant cross objected.
Appeal by special leave from the judgment and decree dated June 3, 1955, of the Calcutta High Court in Appeal from Appellate Decree No.
The respondent there.
The respondent did number say which decree he wanted reopened but with his application he gave a statement of account of the entire amount as reduced under the Bengal Money lenders Act and by the amount realised A by sale of the four properties, and asked that a decree for the balance, Rs.
4,160/ , and the balance then remaining due was Rs.
Availing himself of this Act, Mittra filed a suit under s. 36 of the Bengal Money lenders Act for an order reopening the personal decree.
66 13 2, should be passed against him.
In appeal to the District Court, the decree was companyfirmed.
This decree was made absolute and in execution of the decree, the mortgaged property was sold for Rs.
He held that the personal decree was liable to be reopened, and restored the decree for Rs.
Execution Cage No.
Mittra did number pay the amount as directed under the new decree and Mondal applied for executing the decree.
He filed a suit which was decreed on November 13, 1937, when a preliminary decree for Rs.
2,176/ .
5,591 15 0, but the Subordinate Judge said As Rs.
If the earlier decrees had been reopened, the amount due would have been Rs.
By order dated August 16, 1941, the Subordinate Judge, Midnapore, decreed the suit and directed that a new decree for Rs.
1,431 15 0, a new decree be drawn up.
upon made an application under s. 36 of the Bengal Money lenders Act for reopening the decree.
Out of the four parcels of land sold, three were purchased by Mondal and the remaining was purchased by Mittras wife.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
34, r. 6 of the Civil Procedure Code and obtained on September 7, 1940, a decree for payment of Rs.
In the meantime, the Bengal Money lenders Act had companye into force on August 1, 1940.
2,338 15 3 was passed against the respondent.
The application was partly allowed, and afresh decree for Rs.
2,176,66 out of the decretal amount remained due and payable under the mortgage decree.
5,000/and interest and companyts.
Mittra then filed another suit under s. 36 of the Bengal Money lenders Act in the 2nd Court of the Subordinate Judge, Midnapore, for reopening the, decrees preliminary and final passed in the mortgage suit.
On May 17, 1939, the four properties were sold for Rs.
1442 of 1942, the High Court of Judicature at Calcutta set aside the decree of the District Judge and restored the decree of the Subordinate Judge, 2nd Court, Midnapore.
C. Chatterjee and D. N. Mukherjee, for the appellant.
In the meanwhile, the Bengal Legislature enacted the Bengal Money lenders Act, 1940, which enabled the companyrts in certain circumstances to reopen decrees already passed.
18 of 1937 on June 11, 1937, for enforcement of the mortgage in the Court of the 2nd Subordinate Judge, Midnapore, and obtained a preliminary mortgage decree for Rs.
C. Panda and P. K. Chaterjee, for the respondent, 1961.
was delivered by Shah, J. Hidayatullah, J. delivered a separate judgment.
SHAH, J To secure repayment of Rs.
1090 of 1949.
The District Judge dismissed the appeal, allowed the cross objection, and dismissed the application.
Mondal then applied for executing the personal decree by Misc.
1 1 of 1941.
Against the said decree of the High Court, this appeal is filed with special leave.
Mondal filed suit, No.
508 of 1957.
The Judgment of Kapur and Shah, JJ.
February 21.
2,500/ Anath Nath Mittra hereinafter referred to as Mittra mortgaged four parcels of land to Haridas Mondalhereinafer referred to as Mondal by deed dated April 25, 1930.
1,431 15 0 was passed.
4,160/ and an amount of Rs.
1,431 15 0 be drawn up and that the amount due under the personal decree be paid in three annual instalments.
Three of the properties were purchased by the appellant decree holder , and the fourth, by the wife of the mortgagor.
On appeal to the High Court by the present respondent, R. C. Mitter, J. allowed the appeal.
