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PETITIONER: KUMAR PASHUPATINATH MALIA & ANOTHER

       Vs.

RESPONDENT: DEBA PROSANNA MUKHERJEE.

DATE OF JUDGMENT: 04/05/1951

BENCH: DAS, SUDHI RANJAN BENCH: DAS, SUDHI RANJAN KANIA, HIRALAL J. (CJ) SASTRI, M. PATANJALI

CITATION:  1951 AIR  447            1951 SCR  572

ACT:      Bengal  Money Lenders Act (X of 1940), ss. 2  (22),  36 (5)--Relief  under s. 36--" Suit to which this  Act  applies "--Suit in which execution proceeding was pending on Jan. 1, 1939--Execution Case struck off but attachment continuing in force on Jan. 1, 1939--Applicability of Act----Civil  Proce- dure Code (V of 1908), O. 21, r. 57--Striking off  execution case keeping attachment in force--Whether terminates  execu- tion  proceeding--Sub-mortgagee--Whether assignee  of  mort- gage--Right to claim protection under s. 36 (5).

HEADNOTE:      A decree on a mortgage was passed in a suit brought  by the  representatives in interest of a sub-mortgagee in  1929 and  a personal decree for recovery of the amount  remaining due after the sale of the mortgaged properties was passed in 1935.   In 1936 the decree-holder started execution  of  the personal  decree  and  attached certain  properties  of  the judgment-debtor.   The  decree-holder filed  a  petition  on January  30, 1937, praying that the execution case  "may  be struck  off for non-prosecution, keeping the  attachment  in force" in view of certain negotiations for amicable  settle- ment, and the court passed an order that the execution  case "is dismissed for non-prosecUtion, the attachment 573 already effected continuing". On June 2, 1939,  the  decree- holder  filed  a petition stating that the decree  had  been adjusted  and  attachment  may  be  withdrawn.   The  Bengal Money-lenders Act came into force on September 1, 1940,  and on  January 2, 1941, the legal representatives of the  judg- ment-debtor filed a suit under s. 36 of the Act praying  for re-opening the transactions. The question being whether  any proceeding for execution was pending on or after January  1, 1939,   within  the meaning of the definition of "a suit  to which this Act applies" contained in s. 2 (22) of the Bengal Money-lenders Act:     Held,  per  KANIA  C.J. and DAs J.--That  the  order  of January 30, 1937, was in form and in substance a final order of dismissal of the execution petition of 1936. The  attach- ment  continued  not because there was a  pending  execution proceeding  but because a special order for  continuing  the

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attachment  was made under O. 21, r. 57 of the Civil  Proce- dure  Code as amended by the Calcutta High Court,  and  not- withstanding  the  fact that the  attachment  was  continued there  was  no execution proceeding pending  on  January  1, 1939,  and accordingly the decree sought to be reopened  was not  one passed in "a suit to which the Act applies"  within the  meaning  of s. 2 (22) of the Act and the Court  had  no power  to  re-open the transactions under s.  36   (2).  The petition  of  June 2, 1939, was also not  a  proceeding  for execution  but a mere certification by the decree-holder  of satisfaction of the decree.     PATANJALI  SASTRI J.--The continuance of the  attachment notwithstanding  the  dismissal of the  execution  petition, indicated  that  the proceeding which had  resulted  in  the attachment was kept alive to be carried forward later on  by sale  of  the attached property.  Attachment  itself  is  "a proceeding  in  execution" and so long as it  subsists,  the proceeding in execution can well be regarded as pending.  In this  view a proceeding in execution was pending on  January 1, 1939, and the decree must be taken to have been passed in "a  suit to which this Act applies ".  But inasmuch  as  the sub-mortgage  to the respondent’s predecessor in  title  was bona fide and he obtained by virtue of the sub-mortgage  the right  to  sue the original mortgagor for  recovery  of  the mortgage  debt, the decree-holder was a bona  fide  assignee and his claim for the entire decree debt was protected by s. 36 (5) of the Act.     Renula  Bose v, Manmatha Nath Bose (L.R. 72  I.A.  156), Promode  Kumar Roy v. Nikhil Bhusan Mukhopadhya  (50  C.W.N. 407)  and  Prom ode Kumar Roy v. Nikhil  Bhusan  Mukhopadhya (L.R. 76 I.A. 74) referred to.

JUDGMENT:     CIVIL  APPELLATE  JURISDICTION: Civil Appeal No.  90  of 1950. Appeal against the Judgment and Decree dated the  22nd July 1948 of the High Court of Judicature at Calcutta (K. C. Mitter, and K.C. Chunder J J) in appeal from Original Decree No. 49 of 1942 arising 74 574 out  of Decree dated the 8th September 1941 of the  Subordi- nate Judge at Asansole in Suit No. 1 of 1941.     Purusottam Chatterji (S. N. Mukherjee, with him) for the appellants.     Panchanan Ghose, (P. C. Chatterjee,  with  him) for  the respondent.     1951. May 4. ’the following judgments were delivered :--     DAS  J.--This appeal arises out of a suit filed  by  the appellants on January 2, 1941, in the Court of the  Subordi- nate Judge, Asansole. That suit came to be filed in  circum- stances which  may now be  stated shortly.     A  suit  had been instituted by  one  Kumar  Dakhineswar Malia against Rameswar Malia, Rani Bhaba Sundari and  others for  partition  of the Searsole Raj Estate.   One  Bhagabati Charan  Mitra was appointed receiver of that estate in  that suit. On August 10, 1908, the said receiver with the permis- sion of the Court which had appointed him as receiver grant- ed two mining leases, each for 999 years--one in respect  of 5/16  share  of the Malias in Mouza Monohar  Bahal  and  the other in respect of 230 bighas in village Marich Kota--to  a firm  then carrying on business under the name and style  of Laik  Banerjee & Company. On the same day the said  receiver with like permission mortgaged these properties to the  said

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firm  as security for the due repayment of the loan  of  Rs. 100,000  advanced by that firm.  The Malias joined  the  re- ceiver  in executing the aforesaid leases and the  mortgage. As a result of these transactions the firm of Laik  Banerjee &  Company  became  the lessees for 999  years  of  the  two properties as well as the mortgagee of the lessors’ interest in  the  same.   By diverse processes not  necessary  to  be detailed,  the  appellants  have become  the  successors  in interest of the mortgagors  and the respondent Deva Prasanna Mukerjee has become the successor in interest of the mortga- gee under the mortgage of August 10, 1908. 575     On  March 31, 1922, Deva Prasanna filed suit No.  78  of 1922 for enforcing the mortgage of 1908. Preliminary  decree was  passed in the last mentioned suit on ’ July  31,  1928, and a final decree for sale was made I on February 26, 1929. In  execution of this final decree the mortgaged  properties were  sold  at a Court i sale and  were  purchased  by  Deva Prasanna  for’ Rs. 59,000.  This sale was confirmed  by  the Court on June 30, 1931.  A large sum remaining still due  to Deva  Prasanna,  he applied for, and on  October  30,  1935, obtained a personal decree for Rs. 1,27,179-0-6 against Raja Pramatha  Nath  Malia who had by  inheritance  acquired  the lessors’ interest and become the borrower.     In  1936, Deva Prasanna  started execution case No.  118 of  1936 for execution of the personal decree  and  attached certain  properties alleging that the same belonged  to  the Raja. The exact date of the attachment does not appear  from the  printed record.  The Raja as Sibait of a certain  deity and his two sons, the appellants before us, objected to  the attachment  of  these  properties and filed  a  claim  case. Negotiations  for  settlement  started  and  eventually,  on January  30, 1937, a petition (Ex. 2) was filed in the  exe- cuting Court stating as follows :-     "The judgment debtor having made special requests to the decree-holder  for an amicable settlement of  the  aforesaid execution  case, the decree-holder has agreed to  the  same. But  some time is required to settle the talks and  all  the terms  etc.   The  judgment debtor has paid  to the decree holder the costs of this execution amounting to Rs. 76-14-0, and  he having made requests for this execution  case  being struck  off  for the present on keeping  the  attachment  in force, the decreeholder has agreed to it.     It  is, therefore, prayed that under  the  circumstances aforesaid,  the  Court  may be pleased to  strike  off  this execution case keeping the attachment in force."     Neither  the original nor a certified copy of the  order made on that date by the executing Court on the 576 above petition is forthcoming but the parties have definite- ly  agreed  that the order is  substantially  and  correctly entered  in column 20 of Ex. F which is a certified copy  of extract from the Register of applications for executions  of decrees relating to execution     Case No. 118 of 1936.  The heading  of column 20 is ’Date on which execution  case  was finally  disposed of and purport of final order." The  entry in column 20 under that head is:     "D.  H. admits receipt of Rs. 76-14/- as costs  of  this case from the J.D. The execution case is dismissed for  non- prosecution--the  attachment already effected in  this  case continuing.                               30th January 1937."     The entry under column 11 of that very exhibit reads  as follows :--     "Claim case automatically drops as the execution case is

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dismissed.  It is, therefore, rejected without any  sort  of adjudication.                                  30th January 1937."      In  May  1937, the Searsole Raj Estate came  under  the charge of the Court of Wards. By a Kobala executed with  the permission of the Board of Revenue Raja Pramatha Nath  Malia and his two sons Kumars Pashupati Nath Malia and  Kshitipati Nath Malia represented by Kumar Kshitipati Nath Malia as the Manager of the Searsole Raj Wards Estate conveyed a property known as Senapati Mahal to Deva Prasanna in full  settlement of his claim under the personal decree against the Raja.  By an agreement of even date, Deva Prasanna agreed to  reconvey Senapati  Mahal  to the Kumars if he was paid  Rs.  90,000/- within  two years from that date. Senapati  Mahal  orginally belonged to the Raja but had been tranSferred by him to  his two  sons. A creditor, however, had filed a suit under  sec- tion  53  of the Transfer of Property Act  challenging  that transfer and had actually got a decree declaring that trans- fer  as fradulent and void as against the creditors  of  the Raja 577 An  appeal was filed by the Kumars which was pending at  the date  of the Kobala of January 4, 1939, and, in the  circum- stances,  it  was considered safer to join the Raja  in  the last mentioned Kobala in favour of Deva Prasanna.     On  June 2, 1939, a petition was filed in the  Court  of the Subordinate Judge, Asansole, on behalf of Deva  Prasanna as  the decree holder. It was headed "Money  Execution  Case No.  118  of 1936.  The relevant portions of  this  petition were as follows;--     "That  the above execution case was disposed of  on  the 30th  January  1937 with the attachment  of  the  properties subsisting; since then the decree put into execution in  the above  case  has been adjusted after remission  of  a  large amount  of  interest  by the out and  out  sale  of  certain properties   by  a  registered  Kobala  dated  4th   January 1939  ...  ....................   ........................So there is no longer any need of the said attachment remaining subsisting.     It  is,  therefore, prayed that the  attachment  may  be withdrawn."     On  the  same day the following order was made  on  that petition:--     " Heard learned pleaders for the parties.  They  jointly ask me to cancel the attachment (existing by special  order) in Money Ex. 118 of 1936 though that case was dismissed.                                 Order     The  said  attachment  is cancelled and  the  decree  in question is recorded as adjusted as stated by learned plead- er for the decree-holder and pleader of the  judgment-debtor according  to the adjustment mentioned but not  detailed  in this petition of to-day.  Make necessary notes and send this petition to the District Record Room."     In  the  remarks column No. 22 in Ex.  F  the  following entry was made :--     "The  said  attachment is cancelled and  the  decree  in question is recorded as adjusted as stated by learned 578 pleader for the D.H. and the pleader of the Judgment  Debtor according  to the adjustment mentioned but not  detailed  in this petition of to-day.  Dated 2nd June 1989." The Raja died in August, 1940, leaving the two appellants as his sons and legal representatives.  The Bengal Money  Lend- ers Act, 1940 (Bengal Act X of 1940) hereinafter called  the Act,  came  into force on September 1, 1940. On  January  2,

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1941,  the appellants who, as the legal  representatives  of the  Raja, became "borrowers" within the meaning of the  Act filed  the suit out of which the present appeal has  arisen. The suit was filed by the appellants against the  respondent under section 36 of the Act praying for reopening the trans- actions and taking accounts and for release from all liabil- ities  in excess of the limits specified by law.  In  short, they  asked the Court to give them relief by exercising  the powers  given to the Court by section 36 of the  Act.  There was  also a prayer for reconveyance of the  Senapati  Mahal. The  respondent  filed his written statement  setting  up  a variety  of defences rounded on merits as well as  on  legal pleas in bar.  On May 8, 1941, the Subordinate Judge settled the issues and fixed June 9, 1941, "for a preliminary  hear- ing  of the suit and particularly of such of the  issues  as have been based on the pleas in bar."  Eventually, the  case was  taken up for preliminary hearing on September 4,  1941, and  by  his judgment delivered on September  8,  1941,  the learned Subordinate Judge dismissed the suit on issue No.  2 which was as follows:  "Does  the plaint disclose a valid cause of action for  the suit ?"  The  appellants  preferred an appeal to the High  Court  at Calcutta.   Although  the High Court (R.C. Mitter  and  K.C. Chunder JJ.) did not accept all the reasonings on which  the learned  Subordinate  Judge had based  his  decision,  they, however,  agreed that the appellants could get no relief  as the decrees in suit No. 78 of 1922 could not be reopened, as they were not passed in 579 "a  suit  to which this Act applies" and  consequently  dis- missed the appeal. The appellants have now come up on appeal before us after having obtained a certificate from the  High Court under section 110 of the Code of Civil Procedure.     Learned  Advocate  appearing in support of  this  appeal before us has contended that the High Court was in error  in holding  that  the decrees in Suit No. 78 of 1922  were  not liable to be reopened under the second proviso to section 36 (1). Learned advocate for the respondent while joining issue on  this point also raised a point which, however,  did  not find favour with the High Court, namely, that the respondent as  a bona fide assignee for value of the mortgage debt  was protected  by  sub-section (5) of section 36.  It  is  quite clear  that if either of the two points is  decided  against the appellants, this appeal must fail.     The main provisions of section 36 (1)are in the  follow- ing terms :--     "Notwithstanding  anything contained in any law for  the time  being in force, if in any suit to which this  Act  ap- plies, or in any suit brought by a borrower for relief under this section, whether heard ex parte or otherwise, the Court has  reason to believe that the exercise of one or  more  of the  powers under this section will give relief to the  bor- rower, it shall exercise all or any of the following  powers as it may consider appropriate namely, shall     (a)  reopen any transaction and take an account  between the parties;     (b)  notwithstanding any agreement, purporting to  close previous dealings and to create new obligations, reopen  any account already taken between the parties;     (c)  release the borrower of all liability in excess  of the limits specified in clauses (t) and (2) of section 30;     (d) if anything  has been paid or allowed in account  on or  after the first day of January, 1939, in respect of  the liability referred to in clause (c), order

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580 the lender to repay any sum which the Court considers     to be  repayable  in respect of such payment  or  allowance  in account as aforesaid;     (e)  set  aside either wholly or in part  or  revise  or alter any security given or agreement made in respect of any loan, and if the lender has parted with the security,  order him  to  indemnify the borrower in such manner and  to  such extent as it may deem just."      It  will  be noticed (a) that the  provisions  of  this section apply notwithstanding anything contained in any  law for  the time being in force, (b) that the powers  conferred on the Court or to be exercised either in any suit to  which this  Act applies or in any suit brought by a  borrower  for relief  under the section and (c) that the Court  is  called upon to exercise all or any of the powers conferred on it by the  section  if the Court has reason to  believe  that  the exercise  of one or more of the powers will give  relief  to the borrower.  In the present case the borrowers have insti- tuted  a substantive suit for relief under section  36  and, therefore, if there was nothing also in the section and  the Court had the requisite belief, the Court could exercise all or  any  of the powers and give relief to the  borrowers  in terms of the prayers of the plaint.  There are, however, two provisions  to sub-section (1) of section 36.  The  relevant portion  of  the second proviso is expressed  in  the  words following:      "Provided  that in exercise of these powers  the  Court shall not- (i)         *         *         *         * (ii) do anything which affects any decree of a  Court, other than a decree in a suit to which the Act  applies which  was not  fully  satisfied by the first day   of  January,  1939, or  *    *    *    *"       The  proviso makes it quite clear that in exercise  of the  powers  the Court cannot reopen or otherwise  affect  a decree of a Court unless such decree is one which was passed in a suit to which this Act applies and’ which was not fully satisfied by January 1, 1939.  In the light of the  decision of the Full Bench of the 581 Calcutta  High  Court in Mrityunjay Mitra v.  Satis  Chandra Banerji(1)  which was approved by the Privy Council in  Jadu Nath  Roy v. Kshitish Chandra Acharyya(2), it has  not  been contended, in view of the fact that the personal decree  for the  balance remained unsatisfied on January 1,  1939,  that the  decrees  in Suit No. 78 of 1922  were  fully  satisfied within the meaning of the above proviso. Therefore, the only thing that remains to be ascertained is whether the  decrees were passed in "a suit to which this Act applies." Section 2 (22) of the Act is as follows:     "2.  In this Act, unless there is anything repugnant  in the subject or context"-     (22) "Suit to which this Act applies "means any suit  or proceeding  instituted or filed on or after the 1st  day  of January,  1939, or pending on that date and includes a  pro- ceeding in execution--     (a) for the recovery of a loan advanced before or  after the commencement of this Act;     (b)  for the enforcement of any agreement  entered  into before or after the commencement of this Act, whether by way of settlement of account or otherwise, or of any security so taken,  in  respect of any loan advanced whether  before  or after the commencement of this Act; or     (c)  for the redemption of any security given before  or

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after  the commencement of this Act in respect of  any  loan advanced  whether before or after the commencement  of  this Act."     The  words "instituted or filed on or after the 1st  day of  January, 1939, or pending on that date" have  been  read and understood as qualifying the words "any suit or proceed- ing" in the beginning of the definition as well as the words "proceeding  in execution" occurring further down:  see  per Spens C.J. in Bank of’ Commerce Ltd. v. Amulya Krishna  (3). Accordingly, it has (1) I.L.R. 11944) 2Cal. 376; 48 C.W.N. 361. (2) L.R. 76 I.A. 179 at p. 190. (3) [1944] F.C.R. 126;A.I.R. 1944 F.C. 18. 582 been  held in Ram Kumar De v. Abhoya Pada Bhattacharjee  (1) that  where a decree is such that the suit in which  it  was passed  had terminated before January 1, 1939, and  no  pro- ceeding in execution was started or was actually pending  on or  after that date it is not a decree in "a suit  to  which this Act applies"and cannot be reopened.  The same view  was upheld  by  a Special Bench of the Calcutta  High  Court  in Aparna  Kumari  v.  Girish Chandra  (2)which  overruled  two earlier  decisions  to the contrary.  The  construction  put upon  section  2 (22)by the Special Bench  and  the  reasons given by them appear to us to be well-founded.  In the  case now  before us, the Suit No. 78 of 1922 was  instituted  and all the three decrees were passed long before the  specified date.   The only question that has therefore, to be  consid- ered  is whether any proceeding in execution was pending  on or after that date.  The answer to this question will depend on  the  true meaning and effect of the orders made  by  the executing Court (i) on January 30, 1937, and (ii) on June 2, 1939.     As to (i)--It is not disputed that the order of  January 30,  1937, was made under Order XXI, rule57, as  amended  by the Calcutta High Court. Order XXI, rule 57, is expressed in the following terms :-     "Where any property has been attached in execution of  a decree  but  by reason of the  decree-holder’s  default  the Court is unable to proceed further with the application  for execution,  it shall either dismiss the application  or  for any  sufficient reason adjourn the proceedings to  a  future date.  Upon the dismissal of such application the attachment shall cease."     The  marginal note of the rule is determination  of  at- tachment.  The reason why rule 57 was introduced in the Code of 1908 has been explained by Rank in C.J. in Shibnath Singh Ray v. Sheikh Saberuddin Ahmad(3) as follows:--  (1) 46 C.W.N. 557; A.I.R. 1942 Cal. 441.  (2) 48 C.W.N, 406.  (3) I.L.R. 56 Cal. 416 at pp. 421-422 583     "Rule 57 of Order XXI was a new provision introduced  in 1908.   It is evident from the language of the rule  itself, and  it is still more evident from the  circumstances  under which  it  was  passed, that it was intended  to  provide  a remedy  for the grievance or inconvenience which is  apt  to arise, where, after an attachment in execution, the applica- tion  for  execution  cannot further be  proceeded  with  by reason of the decree-holder’s default.  This was, and  still is,  a  very  common  case.  The  decree-holder  makes  some informal arrangement to give the judgment-debtor time  with- out obtaining full satisfaction of the decree ;the  applica- tion  for  execution is not further prosecuted;  it  is  not withdrawn;  neither party attends.  In these  circumstances,

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the  object of the rule is to say that the Court  must  make either  an order for adjournment or an order  of  dismissal. The reason why it was necessary to require the Court, if  it did not adjourn a proceeding to a definite date, to  dismiss the application for execution formally and definitely can be amply illustrated from the decided cases.  In the absence of a definite order of dismissal the files of the Courts became encumbered with a number of applications for execution which were water-logged and derelict, and a practice arose whereby such applications were ordered to be ’struck off.’  This was a  practice  not justified by the Code and  in  cases  where attachments  in  execution  had already  been  entered,  the question arose whether the effect of an order ’striking off’ was that the attachment made upon application for  execution was itself struck off or whether it remained notwithstanding such  an order.  Many other awkward and important  questions arose out of this practice and the object of rule 57 was  to ensure that this illogical and inconvenient practice  should be stopped. Applications for execution were to be definitely dismissed if they were not adjourned to a future date.   The object  of  the last sentence in rule 57 is  to  settle  the question  whether,  when  the application  in  execution  is dismissed any attachment made under that application  should fall to the ground or should subsist, and 584 the  legislature  has  provided that it is to  fall  to  the ground."     The new rule thus’ introduced left two distinct  courses open  to the executing Court in the situation  envisaged  by the  rule.   Each course had its advantage as  well  as  its disadvantage.   Thus the adjournment of the  execution  pro- ceedings  kept  the  attachment alive  without  any  special direction.   While the adoption of this course  helped  bona fide   arrangement   between  the  decree-holder   and   the judgment-debtor as to the time and manner of satisfaction of the  decree  it was calculated also to  encourage  desultory proceedings resulting in undesirable congestion in the files of  the Executing Court by  keeping alive so many  execution proceedings.  On the other hand, while the dismissal  of  an application  in the circumstances mentioned in the rule  had the merit of preventing a congestion of the file by  finally disposing of the application by a final order, it was calcu- lated to discourage decreeholders from giving even  reasona- ble  accommodation to the judgment-debtor on account of  the destruction of the attachment which left the judgment-debtor free  to  deal  with the property to the  detriment  of  the decreeholder after the attachment ceased.  It was  evidently with a view to preserve the advantage of a dismissal and  at the same time to avoid the disadvantage of the rigid rule of cesser of the attachment that the Calcutta High Court amend- ed rule 57 by adding the words "unless the Court shall  make an order to the contrary" at the end of the last sentence of that rule.  The rule thus amended leaves three courses  open to  the  Executing Court in case it finds  it  difficult  to proceed with the execution case by reason of the default  of the  decree-holder.  It may (1) adjourn the proceedings  for good  reason  which will automatically keep  the  attachment alive  or  (2)  simply dismiss the  application  which  will automatically   destroy  the attachment or (3)  dismiss  the application but specifically keep alive the attachment by an express order. The rule, as amended, therefore, contemplates three distinct forms of order, any one of which may be  made by the Court in the 585 circumstances mentioned in the rule.  The question before us

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is as to the category in which the order made on January 30, 1937, in Execution Case No. 118 of 1936 falls.     It will be recalled that the order of January 30,  1937, was  made  on a petition (Exhibit 2) filed on  that  day  in Execution  Case No. 118 of 1936.  Great stress was  laid  by the learned advocate for the appellants on the words "struck off for the present" occurring in the body of that petition. It  will  be  noticed that those words formed  part  of  the request of the judgmentdebtor which was being recited in the petition. In the actual prayer portion the decree-holder did not use the words "for the present" but only asked the Court "to strike off the execution case keeping the attachment  in force."   Further, apart from what the parties  wanted,  the Court  made  its intention clear in the very order  that  it passed  and which is entered in column 20 of Exhibit F.  The Court  regarded the willingness of the the decree-holder  to enter into a long and protracted negotiation with the  judg- ment-debtor as evidence of unwillingness on the part of  the decree-holder  to  diligently   prosecute   the    execution proceedings  and accordingly  dismissed the  execution  case for non-prosecution but thought fit to expressly keep  alive the attachment.  It is quite obvious that the Court made  an order of the third kind mentioned above.  The three forms of order permissible under rule 57 as amended by the High Court are  quite distinct and independent of each other and  there is no room for their overlapping.  If the mere  continuation of attachment will automatically convert an express order of dismissal  of  the execution application which  is  a  final order  into  an order of adjournment which is  not  a  final order  then there was no point in the High Court taking  the trouble  of  amending  rule 57 at all. The  Court  could  by simply  adjourning the proceedings  automatically   continue the   attachment   without  any express  direction  in  that behalf.   The fact that the Court gave an express  direction that  the attachment should continue clearly indicates  that the 586 Court  intended to make a final order of  dismissal.  Again, the heading of column 20 in Exhibit F clearly indicates that only  a  final order is to be entered in that  column.   The fact that the order was entered in that column affords  some justification for the conclusion that the Court made a final order  of dismissal. That the claim case  was  automatically dropped  is yet another indication that the  execution  case was  at an end.  The fact that the judgment-debtor had  paid the full costs of the execution case is also a feature which goes  to show, to a certain extent at any rate if not  deci- sively,  that the execution proceeding was finally  disposed of  by the order. The following endorsement appears  on  the petition Ex. 2 (a), dated June 2, 1939:     "Heard  learned pleaders for the parties.  They  jointly ask me to cancel the attachment (existing by special  order) in Money Ex. 118 of 1936 though that case was dismissed."     This  endorsement  also  clearly shows  that  the  Court itself understood that the order that it made on January 30; 1937, was a final order of dismissal and that the attachment had been continued by a special order. On a consideration of all these matters I have not the least doubt in my mind that the order of January 30, 1937, was in form and in  substance a final order of dismissal of the Execution Case No. 118  of 1936  and  that the attachment was continued  by  a  special order  such as is contemplated and authorised by the  amend- ment  made  by the Calcutta High Court in rule  57.  Learned advocate for the appellants contended that if the  execution case came to an end the attachment could not be left hanging

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in  the air. There is no substance in this  argument.  Ordi- narily, an attachment is supported by an execution case  and if  the  execution case is simply dismissed  the  attachment must fail with it. But rule 57, as amended, expressly empow- ers the Court to dismiss an execution application but at the same  time to keep alive the attachment by a special  order. That is what was done in this case. Here the attachment does not,  to use the expression of the learned advocate for  the appellants, 587 hang  in  the air. It rests upon the solid foundation  of  a special order which rule 57, as amended, in terms authorises the Court to make. The continuance of the attachment, in the circumstances, needs no execution proceeding to support  it. Take the case of an attachment before judgment. Under  Order XXXVIII, rule 11, where after an order of attachment  before judgment  a decree is passed in favour of the plaintiff,  it is not necessary upon an application for execution of such a decree to apply for re-attachment of the property.  It means that the attachment continues and the judgmentdebtor  cannot deal  with the property to the disadvantage of  the  decree- holder. After the decree is passed, the attachment continues but nobody will say that although there has been no applica- tion  for  the execution of the decree at any  time  by  the decree-holder there is, nevertheless, an execution  proceed- ing  pending merely because the attachment continues.   Here also  the attachment subsists and rests only upon the  terms of Order, XXXVIII rule 11, and without any proceeding.  Such attachment  cannot be called a proceeding in execution,  for none was ever initiated after the decree was passed.  In  my judgment,  the order of January 30, 1937, was a final  order which brought the Execution Case No. 118 of 1936, to an  and and the attachment continued, not because there was a  pend- ing  execution  proceeding but because a special  order  was made  under Order XXI,      rule 57, as amended by the  High Court. As to (ii)--Learned advocate for the        appellants  then contended  that  the petition (Ex. 2a) dated June  2,  1939, amounted to a proceeding in execution and as that was insti- tuted and was pending after January 1, 1939 the  proceedings came  within the definition in section 2 (22)of "a  suit  to which  this Act applies".  I do not think this  argument  is sound. The petition (Ex.2a) was not really an application at all. See Raja Shri Prakash Singh v. The Allahabad Bank  Ltd. (1). In substance, it was nothing but a certification by the decree-holder  of the satisfaction of the decree.  The  mere fact (1) 33 C.W.N. 267; A.I.R. 1929 P.C. 19, 588 that  the document was in the form of a petition  could  not convert what was really the usual certifying procedure  into a  proceeding  in execution for recovery of a  loan  or  for enforcement  of any agreement. It was purely  an  intimation given  to the Court by the decreeholder that the decree  had been satisfied out of Court and the prayer for withdrawal of the attachment was merely consequential and would follow  as a matter of course on full satisfaction of the decree  being recorded.  The order made on that petition also  shows  that the  decree was recorded as adjusted and the attachment  was cancelled. In my judgment, that petition (Ex. 2a) was not an application such as would initiate a proceeding in execution for  any of the purposes mentioned in clauses (a) or (b)  or (c) of section 2 (22) of the Act.     For  reasons  stated  above, the decrees  sought  to  be reopened were not decrees made in "a suit to which this  Act

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applies".  Suit No. 78 of 1922 was neither instituted on  or after January 1, 1939, nor was it pending on that date,  all the three decrees having been passed long before that  date. Nor was any proceeding in execution such as is  contemplated by  section  2 (22) instituted or pending on or  after  that date.  The  Execution Case No. 118 of 1936 was at an end  on January 30, 1937, and the petition of June 2, 1939, was  not an application at all and was certainly not a proceeding  in execution  within the meaning of section 2 (22) of the  Act. This conclusion is sufficient to dismiss this appeal and  it is  not  necessary  for us to consider  the  other  question raised  by the respondent on the strength of section 36  (5) of the Act and I express no opinion on that question.      The  result  is that this appeal must  stand  dismissed with costs and I order accordingly. KANIA C.J.--I agree.      PATANJALI  SASTRI J.--The facts bearing on the  dispute in  this  appeal  are fully stated in the  judgment  of  ray brother Das which I have had the advantage of reading and it is unnecessary to recapitulate them here. 589     The  appellant mortgagor seeks in these proceedings  the reliefs  provided  by  the Bengal  Money-lenders  Act,  1940 (hereinafter referred to as the Act) in respect of a  decree debt  payable  by him.  The respondent  who  represents  the sub-mortgagee  decree-holder invokes the protection  of  two exemptions contained in the Act: (1) Section 86 (1), proviso (ii),  which  exempts inter alia "any decree  other  than  a decree  in  a suit to which this Act applies which  was  not fully  satisfied by the first day of January,  1939".   This raises  a dispute as to whether the respondent’s decree  was passed  in a suit to which the Act applies.  (2) Section  36 (5) which exempts "the rights of any assignee or holder  for value  if the Court is satisfied that the assignment to  him was  bona fide and that he had not received the  notice  re- ferred  to in clause (a) of sub-section (1) of section  28". This  raises  the  question whether a  sub-mortgagee  is  an assignee within the meaning of the Act.     On the first question "a suit to which this Act applies" is  defined in section 2 (22) as meaning "any suit  or  pro- ceeding instituted or filed on or after the 1st day of Janu- ary, 1939, or pending on that date and includes a proceeding in execution for (among other things) the recovery of a loan advanced before or after the commencement of this Act." This definition  has been construed as requiring that  the  "pro- ceeding in execution "referred to therein should be  pending on  1st January, 1939, and the question  accordingly  arises whether the order of the executing court dated 30th January, 1937, which purported to dismiss the respondent’s  execution case  for  non-prosecution while continuing  the  attachment already  effected,  terminated the proceeding  in  execution which  had resulted in the attachment. It was said that  the order was made in accordance with Order XXI, rule 57, of the Civil  Procedure Code as amended by the Calcutta High  Court and  must, therefore, be taken to have been intended to  put an  end  to the execution proceeding altogether.  I  am  not satisfied  that such was the result of the  dismissal.   The amendment which added the words "unless the court shall make an order to the contrary" 200 at the end of the rule envisages a dismissal of an "applica- tion  for  execution" while at the same  time  continuing  a subsisting attachment. The dismissal of 30th January,  1987, must, therefore, be taken to be a dismissal of the execution application  then  before the court and cannot be  taken  to

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have  any wider operation. On the other hand,  the  continu- ance, in express terms, of ’the  attachment  notwithstanding the  dismissal, indicates  that  the    proceeding     which had  resulted   in the attachment  was  kept  alive   to  be carried  forward later on by sale of the attached  property. Attachment  itself  is  a  "proceeding in execution" and, so long.as it subsists, the proceeding in execution can well be regarded  as pending. In In re Clagett’s Estate; Fordham  v. Clagett (1)  Jessel M.R. declared that "a pending matter  in any court of justice means one in which some proceeding  may still be taken".  The attachment was cancelled by the  court only  on  2nd June, 1939, when the decree  in  question  was recorded as adjusted and then, and not before, could  execu- tion of the decree be properly considered to have  terminat- ed.   In this view, a "proceeding in execution" was  pending on the 1st day of January, 1939, and the respondent’s decree must  be taken to have been passed "in a suit to which  this Act applies’ ’, with the result that the respondent’s  claim to  exemption under proviso (ii) to sub-section (1) of  sec- tion 36 of the Act must fail.     I am, however, of opinion that the respondent’s claim to recover  his decree debt is protected under section 36  (5). There  is no question here but that the submortgage  to  the respondent’s predecessor in title was bona fide.  Nor  could he  have received the notice referred to in clause  (a)  of’ sub-section (1) of section 28 as the transaction took  place long  before  the Act was passed.  It is not  disputed  that section 36 (5) applies to pre-Act debts. [See Renula Bose v. Manmatha  Nath Bose(2)].  The only question,  therefore,  is whether  the  respondent  as sub-mortgagee  is  an  assignee within  the  meaning of sub-section (5) of section  36.  The learned (1) 20 Ch. D. 687.        (2) L.R. 72 I.A. 156, 591 Judges in the court below held that he was not, following an earlier decision of their own court in Promode Kumar Roy  v. Nikhil  Bhusan Mukhopadhya(1). That decision,  however,  was reversed by the Privy Council in Promode Kumar Roy v. Nikhil Bhusan  Mukhopadhya(2) where their Lordships dealt with  the question now before us in the following terms :-     "It  was suggested, in the judgment of Mitter  J.  (with which  Waight  J. agreed), and in the argument for  the  re- spondents that if a sub-mortgagee were an ‘assignee’  within section 36, sub-section (5), of the Act., certain  difficul- ties  and  anomalies would result.  Their  Lordships  cannot agree  with this suggestion. They express no view as to  the position  which arises if the sub-mortgage contains  only  a charge  on the original mortgage debt, but when it  contains an  assignment  of that debt, and of all the rights  of  the mortgagee, the position appears to be free from  difficulty. Relief can be given to the original mortgagor as against the original  mortgagee under section 36, but such  relief  must not  affect the rights of the assignee by way  of  sub-mort- gage. To take an imaginary case by way of illustration,  let it be assumed that the amount due on the original  mortgage, for  principal  and interest at the original  rate,  is  Rs. 1,000,  and the sum due on the sub-mortgage  by  assignment, for principal and interest at the original rate, is Rs. 500. Let it further be assumed that if relief could be given, and were  given, under section 36 as against both mortgagee  and sub-mortgagee,  the sums due to them respectively  would  be Rs. 800 and Rs. 400. By reason of sub-section (5), the  sub- mortgagee’s rights cannot be affected. He can therefore,  as assignee  of the mortgage debt: claim his full Rs.  500,  as against  both mortgagor and original mortgagee.  But if  the

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court  gives  the mortgagor relief as against  the  original mortgagee,  the mortgagor will only be liable to pay to  the original mortgagee Rs. 300, the balance of the reduced  debt after paying the sub-mortgagee in full.     As  to contention (b), it is impossible to read  subsec- tion (5) of section 36 as referring only to an assignee (1) 50 C.W.N. 407.        (2) L.R. 76 I.A. 74. 592 of a mortgage decree. The words and that he had not received the  notice  referred to in clause (a)of subsection  (1)  of section  28  make it plain that an assignee  of  a  mortgage debt  is within the sub-section, since   section  28,   sub- section (1) is concerned only with assignment of debts" (pp. 83-84).      The  sub-mortgage  here in question  also  contains  an assignment of the debt due under the original mortgage  debt and  of  "the entire interest" of  the  original  mortgagee. After  reciting  their  original  mortgage,  the  mortgagees proceed to state in the deed of sub-mortgage:      "We  mortgage all that is at present due and that  will in  future  become due to us, the first, second,  third  and fourth  parties, on account of the said one lakh  of  rupees together  with  interest and the entire interest  under  the mortgage  taken by us on the basis of the said Indenture  in respect  of five annas share of the said Niskar Mouza  Mono- harbahal and in respect of sixteen annas of the surface  and underground rights in the said Mouza Marichkota and we  make over the said Deed of Indenture to you".      The decision referred to above is, therefore,  directly in point and rules the present case.      It was suggested that the said decision was  inconsist- ent  with the earlier decisions of the same tribunal in  Ram Kinkar  Banerjee  v. Satya Charan Srimani(1)  and  Jagadamba Loan Co. v. Raja Shiba Prasad Singh(2). Stress was laid upon the  expression  "all the rights of the mortgagee"  used  by their  Lordships  in the passage quoted above,  and  it  was pointed out that in the earlier decisions they held that  in India  a legal interest remained in the mortgagor even  when the  mortgage  was in the form of an English  mortgage,  and that the interest taken by the mortgagee was not an absolute interest.  This proposition, it was said, implied that in  a sub-mortgage  all the rights of the original  mortgagee  are not  assigned  to the sub-mortgagee and that  the  mortgagee still retains a legal (1) 64 I.A. 50.              (2) 68 I.A. 67.   593 interest in the original mortgage.  This is a rather  super- ficial  view  of  the matter.  In the  earlier  cases  their Lordships  were considering the quantum of  interest  trans- ferred  by  a  mortgagor to a mortgagee  in  a  mortgage  of leasehold interest for the purpose  of  determining  whether or not there was privity  of estate between the landlord and the  mortgagee. If the mortgage could operate as an  assign- ment  of the entire interest of the mortgagor in the  lease, the  mortgagee would be liable by privity of estate for  the burdens of the lease. If on the other hand, it operated only as a partial assignment of the mortgagor’s interest, no such result  would follow. It was in determining that issue  that their  Lordships  held that no privity of  estate  arose  in India because a legal interest remained in the mortgagor and the  interest  taken by the mortgagee was  not  an  absolute interest. These cases had no bearing on the question,  which arose in Promode Kumar Roy v. Nikhil Bhusan Mukhopadhya  (1) and arises in the present case, as to whether a  sub-mortga- gee  becomes  an assignee of the mortgage debt  and  of  the

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mortgagee’s  right  to recover the debt  from  the  original mortgagor.   The  Act affords relief to certain  classes  of debtors by curtailing pro tanto the rights of the creditors, subject  to certain exceptions in regard to "assignments  of loans".   In such a context the only relevant  consideration could  be whether the assignment is such as to  establish  a debtor  and creditor relation between the assignee  and  the debtor  so  as to bring the case within the purview  of  the Act.   If the sub-mortgagee obtained, by virtue of the  sub- mortgage, the right to sue the original mortgagor for recov- ery of the mortgage debt, that would seem sufficient to make him an assignee within the meaning of the Act.  It was  from this point of view that the question as to the nature of the right transferred to a sub-mortgagee under his  sub-mortgage was considered in Promode Kumar Roy v. Nikhil Bhusan  Mukho- padhya(1)  as it has to be considered in the  present  case, and the reference to the sub-mortgage containing an  assign- ment of all the rights (1) 76 I,A. 74. 594 of  the mortgagee must, in that context, be understood  with reference to the sufficiency of the right assigned to enable the  sub-mortgagee to sue the original mortgagor in his  own right,  so  as to bring the relevant provisions of  the  Act into  play  as between them. The reservation made  by  their Lordships  in the case of a sub-mortgage containing  only  a charge on the original mortgage is significant and  supports this view.  I do not consider, therefore, that there is  any inconsistency  between Promode Kumar Roy  v.  Nikhil  Bhusan Mukhopadhya(1) and the earlier decisions, and even if  there be any such inconsistency it has no relevance to the present case.     In  the result I agree that the appeal fails and  should be dismissed with costs.                              Appeal dismissed. Agent for the appellants: R.R. Biswas. Agent for the respondent: Sukumar Ghose.