Srimati Oramba Sundari Dasi v. Sri Sri Iswar Gopal Jieu
MuKHERJEA J.-These two analogous appeals, which
are between the same parties and involve the same
points in dispute, are directed against a common
judgment of a Division Bench of the Calcutta High
Court dated the 12th of August, 1948, by which the
learned Judges affirmed, in appeal, the decision of the
Subordinate Judge of Burdwan passed in two analog
ous proceedings under section 36 of the Bengal Money
Lenders Act. The facts material for our present pur
pose lie within a narrow compass and may be stated
as follows : The principal respondents are certain
idols, represented . by their managing Shebait Ram
Govinda Roy. The idols are the family deities of the
Roys of Bonpash in the district of Burdwan, and the
number of Shebaits being very large, there is a
recognised usage in this family that the seniormost
member amongst the descendants of the founder· acts
as the managing Shebait and it is he who manages the
endowed properties and looks after the due perform
ance of the worship of the idols. It is not disputed
by the parties that it is within the competence of the
managing Shebait to borrow money to meet the neces
sities of the idols and to execute such documents as
may be necessary for that purpose. Admittedly
Adwaita Charan Roy was the managing Shebait of the
deities from 1926 to 1930 and as Shebait, he executed
a Hatchita in favour of one Nanitosh Chakraborty
some time in April, 1928, on the basis of which he
received advances of money from time to time from
the latter. The last entry in the Hatchita was made
in March, 1929, and the total amount borrowed up to
that date came up to Rs. 3,801. Adwaita died in
March, 1930, and after his death, Satish Chandra Roy
became the managing Shebait and continued to act as
such till his death in 1940. There was an adjustment
of accounts between Nanitosh, the creditor, in whose
favour the Hatchita was executed, and Satish Chandra,
the managing Shebait some time in October, 1931, and
a sum of Rs. 5,068, having been found due to the
1954
Sn'mati Oramba
Sundari Dasi
v.
Sri Sri lswar
Gopal Jieu.
Mukhedea J.
1954
Srimati Oramba
Sundari Dasi
v.
Sri Sri Iswar
Gopal Jieu.
Mukherjea J.
creditor, Satish Chandra gave him a renewed Hatchita
for that amount. It appears that while Adwaita was
still the managing Shebait, a suit was instituted by
some of his co-Shebaits to remove him from his offce
and pending the hearing of the suit, Ramjanaki Rnv,
another co-Shebait, was appointed a Receiver of the
debutter property by the court. With the permission
of the court, Ramjanaki harrowed from the same
Nanitosh Chakraborty three sums of money on three
different promissory notes executed respectively on the
27th Septemher, 1929, 1st October, 1929, and 14th
January, 1930. The suit was eventually dismissed for
non-prmecution after A,lwaita's death. Nanitosh d].-d
in 1931, and i,-, 1932, his two sons Aditya and Dhirendra,
who figure as respondents 14 and 15 in these
appeals, instituted two money suits against Satish
Chandra, t)1e managing Shebait, in the Court of the
Subordinate Judge, Burdwan, being Money Suits Nos.
261 and 262 of 1932. for recovery of the moneys due
in respect of the Hatchita and the promissory notes
mentioned aforesaid. Both the suits were decreed ua
the basis of a compromise elated the 23rd July, 1933,
and two consent decrees were passed, one for a sum
of Rs. 5,800, and the other for Rs. 2,200, both papble
in sixteen vearly instalments with a further stipulation
that in default of payment of any one of the instal
ments, the whole or balance of the clecretal amount
would become clue and payable in each. The instal
ments not having been paid in either of the rnses
both the decrees were put into execution. In Execu
tion Cases Nos. 76 and 77 of 1936, arising out of
Money Suits Nos. 261 and 262 of 1932, the properties
mentioned in Schedule Ka in each case were put up to
sale and they were purchased ostensibly by the two
clecrceholclers Aclitya and Dhircn. Three years bter,
Execution Cases Nos. 17 and 18 of 1939 were started
again in connection with the said decrees and this
time the properties specified in Schedule Kha were
attached and put up to sale and they were also
purchased by the Chakraborty clecreeholclers. Finally
in Execution Cases Nos. 163 of 1939 and 5 of 1940.
the properties described in Schedule Ga were sold and
S.C.R. SUPREME COURT REPORTS 991
thev were knocked down to Srimati Oramba Sundari
Da;i, who figures as the appellant in the appeals before
us and who. it may be noted, is the wife of Aghore
Nath Roy, a son of Adwaita, the former managing
Shebait of the debutter estate. Subsequently, the
deqeeholders, who purchased Ka and Kha Schedule
properties sold them by a registered Kabala to the said
Oramba Sundari Dasi on the 26th of July, 1940. The
result, therefore, was that the properties described in
the three Schedules came to vest in Oramba Sundari,
the wife of Aghore Nath Roy. On the 28th August,
1941, the deities represented by some of the Shebaits
filed two applications under section 36 (6) (a) (ii) of
the Bengal Money-Lenders Act, praying for the reopen
ing of the two compromise decrees mentioned afore
said and the passing of new instalment decrees iri
accordance with the provisions of the Act. There were
· prayers also for restoration to the deities of all the
properties mentioned in Schedules, Ka, Kha and Ga
which were purchased in execution of tl1e decrees. The
principal opposite parties to these proceedings were
the Chakraborty decreeholders, Oramba Sundari, the
ostensible purchaser, a.nd Aghore Nath Roy, her
husband.
The allegations in the applications, in substance,
were that the Chakrabortys were mere benamidars
for Aghore Nath Roy, who was the real lender
and the real decreeholder in both these suits. It was
alleged that Aghore Nath Roy purchased these pro
perties in the benami of the decreeholders in two out
of the three execution proceedings and in the benami
of his wife Oramba Sundari in the third. The subsequent
Kabala executed by the Chakrabortys in favour
of Oramba Sundari was also asserted to be a fictitious
conveyance made in favour of Aghore Nath Roy in
the name of his wife. In these circumstances, the
iudgment-debtors prayed that they were entitled to
have the two compromise decrees reopened and on the
passing of new instalment decrees to have the proper
ties, which were in possession of the real decreeholder.
restored to the deities in terms of section 36(2) ( c) of
the Bengal Money-· Lenders Act. The trial judge decided
1954
Srimati Oramba
Sundari Dasi
v.
Sri Sri Iswar
Gopal Jieu.
Mukherjea J.
1954
Srimati Oramba
Sundari Dasi
v.
Sri Sri lswar
Gopal Jieu.
Mukherjea J.
992 SUPREME COURT REPORTS [19541
in favour of the judgment-debtors and granted their
prayers in both the applications. Orders were made
for reopening of the decrees and making of fresh
decrees in their places in accordance with the provi
sions of the Bengal Money-Lenders Act. Direction
was also given for restoration of the properties men
tione,d in Schedules Ka, Kha and Ga to the deities
under the provision of section 36(2) (c). Against this
decision, Oramba Sundari took two appeals to the High
Court of Calcutta and the learned Judges, who heard
the appeals, affirmed the decision of the court below
and dismissed both the appeals. Oramba Sundari has
now come up in appeal to this court on the strength of
a certificate given by the High Court under sections
109 (a) and llO of the Civil Procedure Code.
Mr. Chatterjee, who appeared in support of the
appeals, has not challenged before us the findings of
fact concurrently arrived at by the courts below, viz.,
that the appellant Oramba Sundari was a mere
benamidar for her husband Aghore in respect of the
purchase of Ga Schedule properties in court sale, and
also that the Kobala executed by the Chakrabortys in
her favour on July 26, 1940, was a fictitious transaction.
The point, which he has pressed for our consideration,
is that in a proceeding under section 36 of the Bengal
Money-Lenders Act, it is not open to the court to go
behind the decree and launch an enquiry as to whether
the decreeholders on record were in fact benamidars
for another person. In other words, the contention
is that, even if Aghore was proved to have advanced
the money upon which the Chakrabortys obtained the
decrees, in reopening the decrees and in working out
the rights of the parties in accordance with the provi
sions of the Bengal Money-Lenders Act, the court
could treat the Chakrabortys alone as the decree
holders. For a proper determination of this point, it
is necessary to examine the scope of section 36 of the
Bengal Money-Lenders Act and the reliefs which the
court is competent to grant in terms of that section.
' Section 36 of the Bengal Money-Lenders Act sets
out the various powers which the court can exercise,
S.C.R .. SUPREME COURT REPORTS 993
if it has reason to believe that the exercise of one or
more of the powers will give relief to the borrower as
contemplated · by the Act; and one of the powers,
which is mentioned in clause (a) of sub-section (1) of
the section is to reopen any transaction and take an
account between the parties. The drafting of section 36
is indeed obscure and somewhat clumsy, but it is dear,
as the Privy Council(') has pointed out, that the
power of reopening a transaction, as contemplated bv
the section, extends to reopening of decrees as well.
Sub-section (2) of section 36 contains detailed provi
sions as to what the court may or may not do when a
decree is reopened. It cannot be disputed that the
court reopens a decree under section 36(2) only for the
purpose and so far as it is necessary to give relief to
the borrower in the manner provided for in the Act,
namely, to release him from all liability for interest in
excess of the limits prescribed by section 30 of the
Act. A new decree is passed only for the purpose of
substituting the method of accounting sanctioned by
the Act for the calculations upon which the original
decree was passed and to give an opportunity to the
judgment-debtor to pay the decretal dues thus ascer
tained by instalments. But save and except for these,
the old decree as well as the adjudications made there
under are not wiped out and the parties are not rele
gated to their rights and liabilities under the original
cause of action('). How the rights of the parties are to
be ad justed and worked out when a decree has been
reopened has been dealt· with exhaustively in the several
dauses of section 36 (2) of the Bengal Money-Lenders
Act, and an examination of these clauses makes it clear
to our minds that an enquiry as to whether the decree
holder was in fact a benamidar for another person
in respect of the decree, does not come within the
purview of these provisions. Clause (a) of section 36(2)
empowers th~ court to pass a new decree in accordance
with the provisions of the Act. Obviously, this new
decree is to be passed in favour of the original decree
holder and only the calculations upon which the old
(1) Vide Rettula v. Manmat!1a, 72, I. A. 156.
(2) Vide Bank of Commerce Lid. v. Amulya KriJhna Basu Rqy Chow
dhury F. C. R. 126.
1954
Srimati Oramba
Sundari Dasi
v.
Sri Sri Iswar
Gopal Jieu.
-" MukherJea J.
1954
Srimati Oramba
Sundri Dasi
v.
Sri Sri Iswar
Gopol Jieu.
Mukhei:iea J.
994 SUPREME COURT REPORTS - [1954]
decree was based would be changed by substituting
the statutory method of accounting in place of what
rested upon the contract between. the parties.
Clauses (b) and (c) contemplate cases where properties
have been sold in execution of the original decree. If
the purchaser is the decreeholder himself and he is in
possession of the property when the decree is reopened,
it is incumbent upon the court to order restoration of
these properties to the judgment-debtor under
clause (c). If, on the other hand, the properties had
been acquired by strangers either by purchase at the
execution sale or from the decreeholder purchaser,
their interests would be protected if they have acquired
these rights bona fide as contemplated by clause (b ).
Under clause (cl), the court has to order the payment
of the decreetal amount in such instalments as it thinks
proper, and clause ( e) further imposes a duty on the
court to give a direction in such cases that if there is
default in the payment of any one of the instalments,
the properties restored to the judgment-debtor under
clause ( c) would be put back into the possession of the
decreeholder. It is quite true that the object of
restoring possession of the properties sold in execution
of the decree to the judgment-debtor is to enable the
latter to pay off the decretal dues, but it is to be
remembered that the sale itself is not annulled, and in
case of default in payment of any of the instalments,
the properties are returned to the decreeholder
purchaser. We agree that if the purchaser is a mere
benamidar for the decreeh0lder, clause (b ), sub
section (2) of the section would not afford protection
to him in any way. He could not be regarded as a
person other than the decreeholder acquiring rights
bona fide as contemplated by that clause. For the
purpose of giving effect to clauses (b) and ( c), there
fore, the court has not only the right but is under a
duty to make an enquiry as to whether the ostensible
purchaser at the execution sale, or the person who
purports to have acquired an interest therein under a
subsequent transfer from the decreeholder purchaser,
has bona fide acquired such rights within the meaning
of clause (b). But we do not agree with the learned
s:c.R. SUPREME COURT REPORTS 995
Judges of the High Court that in making a new decree
under clause (a) of section 36(2) and giving the
judgment-debtor consequential relief under clause ( c)
of . the sub-section, the court can at all enter into the
question as to whether the decreeholder on record is
himself a benamidar for another person in respect of
the decree. Such enquiry, it seems to us, is altogether
outside the purview of the different clauses of sec
tion 36(2) of the Bengal Money-Lenders Act. These
provisions do not recognise any other decreeholder than
the one in whose favour the original decree was passed.
It is between him and the judgment-debtor that the
rights ate to be adjusted in accordance with the provi
sions of the Act; to him would the instalments have to
be paid under the new decree, and he alone would be
compelled to restore the properties which he had pur
chased in execution prdceedi.ngs. None but the decree
holder on record can give a valid discharge or record
satisfaction of the decree. This being the position, it
is altogether immaterial, in our opinion, that it was
Aghore, the husband of the appellant, who really
advanced the money upon which the decrees were
obtained. We must treat the Chakrabortys and the
Chakrabortys alone as the decreeholders and see to
what extent the provisions of the Act could be applied
against them in· the circumstances of the present case.
So far as the properties described in Schedules Ka and
Kha ate concerned, it is not disputed that they were
purchased by the decreeholders themselves. No price
was actually paid by the decreeholders, but the sale
proceeds were set ·off against the decretal dues. The
decreeholders, therefore, must be deemed to be the
purchasers of these properties within the meaning of
clause ( c) of section 36(2); and as the subsequent con
veyance of these properties in favour of Oramba
Sundati, the appellant, has been held by both the
courts below . to be a fictitious transaction, we must
hold that 0Iamba Sundati did not bona fide acquire
my right which could be protected under clause (b) of
section 36a). With regatd to these properties, there
fore, the order for restoration of possession made by
both the courts below should stand. As regards Ga:
5-97 S. C. India/59
1954
Srimati Oramba
Sundari Dasi
v.
Sri Sri lswar
Gopal Jitu.
Mukherjea J~
1954
Srimati OramlitJ
Sundari Dasi
v.
Sri Sri Iswar
Gopal .7itu.
Mukhtlj1a ].
1954
March 15.
Schedule properties, however, Oramba Sundari was
the purchaser at the execution sale and whether or
not the money for such purchase was paid by her
husband becomes immaterial. This was not the pro
perty purchased by the decreeholders and there is no
proof of the decreeholders being in possession of the
same either by themselves or through Oramba Sundari.
In these circumstances, clause (c) of section 36(2) can
not be attracted in favour of judgment-debtors so far
as this property is concerned and the possession of it
must remain with the appellant. We, therefore, allow
the appeal in part and set aside the order for restora
tion of possession made by the courts below in respect
to the Ga Schedule property. The rest of the decision
of the High Court will stand. We make no order as
to costs of these appeals.
A pp(a/ partly allo1ud.