ORDER
Kalyan Jyoti Sengupta, J.
1. This Motion has been taken out by one Pran Kumar Bhattacharaya being the auction-purchaser in respect of the suit property being premises No. 16/B Ramesh Dutta Street, Calcutta (hereinafter referred to as the suit property) for, in substance, setting aside of the report of the Registrar Original Side and also for determination of the amount payable by the defendant no (sic) and/or by the applicant herein, and for other consequential reliefs. The original plaintiff Pranil Kumar Sett, since deceased filed the above suit for enforcement of the mortgage which was created by one Kishorilal Bysack being the original defendant No. 1. On 28th August 1973 preliminary decree was passed. After this suit was filed the original defendant No. 1 had created a puisne mortgage in favour of the defendant No. 2, thus, he was made party to this suit. This Court while passing preliminary decree declared that the amount due to the plaintiff in respect of his mortgage dated 22nd May 1964 on account of principal was a sum of Rs. 24,707 and to grant interest on the said principal sum at the rate of 8 per cent per annum from 22nd May 1964 until realization and a sum Rs. 2550 already received by the plaintiff on account of interest in respect of the said mortgage property. The Court further declared in the preliminary decree that the plaintiff was entitled to a personal decree against the defendant Kishorilal Bysack for the sum of Rs. 2500 with interest thereon, at the rate of 4 per cent per annum from 26th November 1963 up to 11th August 1966. It was further declared that the amount due to the defendant Netai Chand Dhar (being the defendant No. 2) in respect of his mortgage dated 29th July 1966 for principal was a sum of Rs. 5000 and he was entitled to interest on the said principal sum at the rate of 10 per cent per annum from 29th July 1966 until realization. This Court further declared that the plaintiff was also entitled to personal decree against the defendant No. 1 Kishorilal Bysack (since deceased) for the sum or Rs. 1000 with interest thereon at the rate of 6 per cent per annum from the date hereof until realization. In terms of the preliminary decree the Registrar Original Side of this Court was directed to take an account of the amount paid by the Official Receiver appointed in the suit and after institution of this suit on account of the said claim of Rs. 1000/- of the plaintiff and to give credit to the defendant Kishorilal Bysack for the amount so paid. It was provided amongst others that on payment of the amount due to the plaintiff by the defendant Kishorilal Bysack and Netai Chand Dhar or any of them in the manner prescribed in the Clause 1(a) and on payment thereof before the said date as may be fixed for such amount as may adjudged due in respect of such costs of the suit and such costs, charges and expenses as may be payable under Rule 10 together with such subsequent interest as may be payable under Rule 11 of Order XXXIV of the First Schedule of the Code of Civil Procedure 1908, the plaintiff shall bring into Court all documents in his possession or power relating to the mortgage property being the premises No. 169/B Ramesh Dutta Street, Calcutta by the said period mentioned and all such documents shall be delivered over the said defendants Kishorilal Bysack and Netai Chand Dhar (who are meeting the payment or to such person as the Court may direct) and the plaintiff shall, if so required, recover or retransfer the said property free from the said mortgagee and clear off and from all encumbrances created by the plaintiff or any person claiming under him or any person whom he claims and also free from all liabilities whatsoever arising from the mortgage or this suit. It was further provided in the said decree that on payment of the amount due to the said defendant Netai Chand Dhar by the said defendant Kishorilal Bysack, the mortgage in the manner prescribed in the said Clause 1(b) and on payment thereafter before such date as may be fixed by such amount as may be adjudged due in respect of such cost of the suit and such costs, charges and expenses as may be payable under Rule 10 together with such subsequent interest as may be payable under Rule 11 of Order XXIV of the First Schedule of the Civil Procedure Code 1908. It was further ordered and decreed that in default of payment as aforesaid of the amount due to the plaintiff, the plaintiff being at liberty to apply to the Court for a final decree subject to the Bengal Money Lenders Act 1940 (hereinafter referred to as the said 'Act').
2. Thus, it will appear from the aforesaid preliminary decree that there are two kinds of Decree i) Decree under Order XXXIV, Rule 11 of the Civil Procedure Code 1908 which relates to the mortgage property and (i) Personal decree.
3. So far as the decretal dues in relation to mortgage is concerned the same relates to the sum which was adjudged and calculated by the Registrar Original Side of this Court.
4. The Registrar had adjudged the decretal dues together with interest in relation to the property and has submitted report. Admittedly neither of the parties took exception to the said report nor the plaintiff or his successor-in-interest did apply for final decree on receipt of the aforesaid report after expiry of period of six months. The applicant herein purchased the property in question in Court sale, which was held by the learned City Civil Court at Calcutta on execution of money decree obtained by the applicant herein. So, before the property was put up for sale, it was advertised and made known to all concerned that the same was subject to litigation in this Court. The applicant herein and being the plaintiff in the above money suit with the permission of the Court purchased the subject property.
5. After purchase of the said property the applicant herein was brought on record as auction purchaser by an order dated 25th April 1990 passed by His Lordship the Hon'ble Mr. Justice Prabir Kumar Mazumdar (as His Lordship then was).
6. Mr. Sujit Kumar Addya the learned Senior Advocate appearing in support of this application contends that the report of the Registrar is bad in law so also his calculation of the amount decreed and payable by the original defendant No. 1 as the provision of the Bengal Money Lenders Act 1940 was not taken into account. The amount paid by the Official Receiver and received by the original plaintiff during pendency of the suit have not been adjusted and/or taken into account. His contention is that under the provision of Section 30 of the Bengal Money Lenders Act 1940 liability of judgment-debtor now of the petitioner shall confine to a sum in respect of principal and interest which together with any amount already paid or included in any decree in respect of a loan exceeding twice the principal of the original loan. Therefore, dues in relation to mortgage at the highest can be adjudged and/or calculated at a sum double of the principal amount in the mortgage suit that apart the payment already being made or received by the original plaintiff should be adjusted, so he has prayed for setting aside of the report and also for recalculation and/or determination of the amountdue to be paid pursuant to the preliminary decree. His client is prepared to pay the sum if anything found due. He contends that his client has acquired interest and has become successor-in-interest of the original defendant No. 1 by virtue of devolution of interest in the said property during pendency of the suit.
7. Mr. Bhaskar Mitra appearing for the successor-in-interest of the original plaintiff, namely Ms. Purnima Sett administratix and heir of the deceased plaintiff submits firstly that applicant being the auction-purchaser has no locus standi to ask for the relief as claimed herein. Moreover his claim is barred by limitation, he ought to have initiated this action within the period prescribed in Article 61 of the Limitation Act 1963.
8. In any event this claim can be advanced by the heirs and legal representatives of the deceased defendant No. 1, as right of redemption is vested in the mortgager and/or his heirs and legal representatives
9. He contends that there is no illegality and infirmity in the report filed by the Registrar pursuant to the preliminary decree.
10. Having heard respective contentions and submission of the learned lawyers the first point is to be considered is as to whether the applicant who has been brought in, in this suit has locus standi to make this application or not. And if so whether the relief claimed can be granted or not.
11. As far as the locus standi of this applicant is concerned. I am of the view that this has to be judged from the point of view who has right of redemption of a mortgage property. I find this right can be asserted not only by the mortgager himself but also some other persons and this law has been expressly laid down in Section 91 of the Transfer of Property Act, the said Section is quoted hereunder :
'91. Besides the mortgagor, any of the following persons may redeem, or institute a suit for redemption of the mortgaged property, namely,--
(a) any person (other than the mortgagee of the interest sought to be redeemed) who has any interest in or charge upon, the property mortgaged or in or upon the right to redeem the same;
(b) any surety for the payment of the mortgage-debt or any part thereof; or
(c) any creditor of the mortgagor who has in a suit for the administration of his estateobtained a decree for sale of the mortgaged property.'
12. Thus it will appear from Clause (a) of Section 91 that the same makes it clear that any person who is having any interest in or charge upon the property mortgaged is competent to redeem mortgage. The applicant herein, admittedly the auction-purchaser of the property in question certainly has got interest in the property, as such I reject the contention of Mr. Mitra that the applicant has no locus standi to make this application as being an auction-purchaser. After the property is sold whether voluntary or involuntary, the transferee is the successor in interest in the property in question.
13. As far as the point of limitation is concerned as raised by Mr. Mitra the Article 61 of the Limitation Act, 1963 is not applicable at all in this case. In order to understand better Article 61 is quoted hereunder:--
Article 61. By a mortgagor--
(a) toredeem or recover possession of immovable property mortgaged
Thirtyyears.
When theright to redeem or to recover possession accrues.
(b) torecover possession of immovable property mortgaged and afterwards transferredby the mortgagee for a valuable consideration.
Twelveyears
When thetransfer becomes known to the plaintiff.
(c) torecover surplus collections received by the mortgagee after the mortgage hasbeen satisfied.
Threeyears.
When themortgagor re-enters on the mortgaged property.
14. The aforesaid Article will be applicable in case when a suit is to be filed by the mortgager for redemption or to recover possession of immovable property mortgaged under the Transfer of Property Act. In this case the mortgagee filed suit for enforcement of mortgage for the recovery of the mortgage dues under Order XXXIV of the Code of Civil Procedure, 1908 read with Transfer of Property Act. Therefore this argument of Mr. Mitra does not hold good. Moreover the right of redemption of the mortgagor in a suit for foreclosure subsists till final decree debarring the defendant (mortgagor) from all rights to redeem the mortgage property has been passed, under Rule 3 of Order XXXIV of the Code of Civil Procedure which is set out here-under :--
'Rule 3. Final decree in foreclosures suit.-- (1) Where, before a final decree debarring the defendant from all rights redeem the mortgaged property has been passed, the defendant makes payment into Court of all amounts due from him under Sub-rule (1) of Rule 2, the Court shall, on application made by the defendant in this behalf, pass final decree-
(a) ordering the plaintiff to deliver up the documents referred to in the preliminary decree.
and, if necessary,--
(b) ordering him to re-transfer at the cost of the defendant the mortgaged property as directed in the said decree.
and also, if necessary,--
(c) ordering him to put the defendant in possession of the property.'
15. Therefore I hold that question of limitation in this case does not arise.
16. In this case the suit was decreed in preliminary form under Order XXXIV, Rule 7 whereby the account was directed to be gone into by the Registrar. The report has been filed, neither of the parties took any step pursuant to the report. Now the auction purchaser has come forward calling upon the Court to put an end to this litigation by the instant application expressing intention to pay off the decretal dues which is legitimately due and payable having due regard to the provision of Sections 30 and 36 of the said Act and setting aside the report.
17. Now it has to be examined whether the report or for that matter the decree is required to be reopened and set aside in the manner as asked for in view of the provision of Sections 30and 36 of the Bengal Money Lenders Act, 1940.
18. While dilating on the point as quoted above I observed that the applicant beingthe successor in interest of the property in question cannot make any challenge as to legality, correctness arid validity of the report submitted by the Registrar, by reason of fact that this report was submitted by the Registrar on 16th August 1979, therefore, under the Rules of the Original Side of this Court read with the said preliminary decree, the challenge should have been taken by the then defendant No. 1, who was then alive within fourteen days from the date of filing thereof (see Rule 89 of Chapter XXVI of Original Side Rules). In view of non-challenge of the said report and by efflux of time this report automatically stands confirmed (see Rule 90 of Chapter XXVI of Original Side Rules). It is not a case of without jurisdiction of the Registrar but it may be case of mere irregularity and error on the part of the Registrar at the highest. Mr. Addya contends that the Registrar was supposed to follow the provision of the Bengal Money Lenders Act 1940 and not having done so he has failed to exercise his power lawfully. I am unable to accept this contention. The question of application of provision of Bengal Money Lenders Act 1940 will be arising at the time when the plaintiff will apply for final decree in terms of preliminary decree. The relevant portion of the said decree is quoted hereunder.
'and it is hereby further ordered and decreed that in default of payment as aforesaid of the amount due to the plaintiff, the plaintiff shall be at liberty to apply to the Court for final decree subject to the Bengal Money Lenders Act 1940.'
19. This is not an application of the plaintiff for final decree, but of the auction-purchaser and/or decreed judgment-debtor. I could have dismissed this application on that ground alone, but in order to decide this old suit once for all without requiring the parties to resort to procedural formality I decide the question of applicability of the Bengal Money Lenders Act 1940.
20. In this case the preliminary decreeprovides for two kinds of decree, one is ofmortgage and another personal. Again I findthat the mortgage decree relates to two setsof mortgage, one in favour of the plaintiffanother in favour of the defendant No. 2,which was a later mortgage, however, ultimately the right of redemption of the puisnemortgage has been acquired by the plaintifflater on.
21. The applicant cannot have any contention or objection as to the discharge, satisfaction and payability of the personal money decree since he is not successor-in-interest of judgment-debtor to that extent, his interest is in relation to the property only. Therefore, Mr. Addya's contention in respect, of the said Act cannot be accepted as far as money portion of the decree is concerned. Therefore, I set out Section 30 of the Bengal Money Lenders Act 1940, in order to understand the scope and purview of the same.
'Section 30. Limitations as to amount and rate of interest recoverable.--Notwithstanding anything contained in any law for the time being in force, or in any agreement,
(1) no borrower other than a borrower of commercial loan shall be liable to pay after the commencement of this Act-
(a) any sum in respect of principal and interest which together with any amount already paid or included in any decree in respect of a loan exceeds twice the principal of the original loan.
(b) on account of interest outstanding on the date up to which such liability is computed, a sum greater than the principal outstanding on such date.
(c) any interest other than simple interest at a rate per annum not exceeding in the case of -
(i), unsecured loans--twelve and a half per centum,
(ii) secured loans--ten per centum;
whether such loan was advanced or such amount was paid or such decree was passed or such interest accrued before or after the commencement of this Act;
(2) no borrower other than a borrower of commercial loan shall after the commencement of this Act, be deemed to have been liable to pay before the date of such commencement in respect of interest paid before such date or included in a decree passed before such date, interest rates per annum exceeding those specified in Sub-clause (c) of Clause (1) :
(3) a lender shall be entitled to institute a suit at any time after the commencement of this Act in respect of a transaction to which either or both of the proceeding Clauses applies or apply.'
22. Upon correct and proper interpretation of the aforesaid Section it appears to me that the Court is not precluded from passing any decree ignoring the aforesaid provision but when question of payability of the borrower in relation to the dues of theloan transaction arises the provision of Section 30 has to be regarded, if necessary, the decree may have to be reopened in appropriate case.
23. I find the provision of Section 36 of the said Act also enables the Court to reopen any transaction and take an account between the parties. Therefore, Section 36 is quoted hereunder :--
'Section 36. Reopening of transactions.--(1) Notwithstanding anything contained in any law for the time being in force or in any agreement if in any suit to which this Act applies, 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 the powers under this Section will give relief to the borrower, 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) reopen any account already taken between the parties, purporting to close any previous dealings and to create new obligations.
(c) release the borrower of all liability in excess of the limits specified in Clauses (1) and (2) of Section 30;
24. It is clearly manifest from plain reading of the said Section 36 that the decree may be reopened, if it is required to grant relief under Section 30 Sub-section (1). This has been observed by the judgment of Division Bench (Supra) in its paragraph 8. Justice A.K. Sen (as His Lordship then was) speaking for the Bench ruled. '.........This provision, therefore clearly lays down that a borrower would be entitled to relief as envisaged by the provision even when his liability is fixed by a decree passed after commencement of the Act and necessarily, therefore, in spite of the fact that though the borrower could have claimed such relief by way of his defence to the suit, he did not do so. Section 36(1)(c) empowers the Court to release the borrower all liabilities the excess of the limits specified in Clauses (1) (2) of Section 30. Naturally it empowers the Court to do so notwithstanding a decree passed after commencement of the said Act.....'
25. Effect of combined application of both the said two Sections in this case will be if the amount mentioned in the preliminary decree read with report together with interest exceeds double of the principal amountof loan then the report and decree may be reopened. It appears from the decree that the principal amount of loan was Rs. 24,700/-. The claim in the suit was Rs. 30,822.17 p. which includes interest, The Court decreed the said sum of Rupees 24,700/- and interest at the rate of 8 per cent per annum from 22nd May 1964. Therefore, decretal amount does not apparently exceed Rs. 49,400/-. While taking note of the report of the Registrar, I find a sum of Rs. 42,997.65p, is shown to have been due on account of principal Rs. 24,700/- and interest at the rate of 8 per cent per annum on the date of passing of the decree, namely, 28th August 1973.
26. Mr. Bhaskar Mitra's contention is that the Bengal Money Lenders Act 1940 has no application as far as Mr. Addhya's client is concerned, as he is not borrower. As I find from the definition of borrower of the said Act which provides that 'borrower means a person to whom a loan is advanced and includes a successor in interest or surety.' I have already observed that the petitioner being the purchaser is having interest in the property under the Transfer of Property Act, so, the aforesaid definition 'borrower' has also to be read in conjunction with the provision of the Transfer of Property Act, namely, Section 61 of the Transfer of Property Act.
27. Therefore, dues do not offend Section 30(1) of the said Act. Had the original judgment-debtor paid this amount immediately after calculation then there was no question of applying the said Section. In my view benefit of the said provision can be extended only when the decreetal dues on the date of payability and/or falling due exceeds twice the principal, not thereafter. In other words if the judgment-debtor without paying the above amount before it became double of the principal amount together with interest, allow the interest to run, he cannot get the benefit of the said provision. In the Division Bench judgment factually the decretal amount far exceeded twice of the original principal amount of loan.
28. The aforesaid Act in my view is beneficial legislation and to provide safeguard measure against tremendously financial hardship of the loanee in certain cases, but this benefit cannot be extended to recalcitrant and dozing borrower. In this case the original defendant No. 1 could have paid the amount immediately after quantification. So Mr. Addy's client cannot have greater or better right than that of the original defendantNo. 1 notwithstanding his ignorance of the fact. Therefore, the applicant shall pay the entire amount as calculated by Registrar so far as it relates to mortgage after giving adjustment of payment made by the Official Receiver out of collection of rents from the tenant. The Official Receiver shall supply intimation in writing of collection of rent and payment made by him to the plaintiff decree holder within two weeks from the date of communication of this order.
29. In the event such payment is made then all the documents relating to title of this property shall be handed over to Mr. Addya's client by the Official Receiver and/ or the plaintiff. Within a fortnight from the date of making payment the Official Receiver shall stand discharge. It is further submitted by Mr. Bhaskar Mitra that his client has already obtained a decree for specific performance in relation to the same property in which the present applicant was not made a party by Justice Prabir Kumar Mazumdar (as his Lordship then was). I am not deciding or observing anything on this issue as this issue will be decided at the time of execution of that decree, as to whether the said decree is enforceable as against the applicant or not.
30. Thus the application is allowed to the extent as above.
31. No order as to costs.
32. It appears from the suit that both the plaintiff and defendant No. 1 died and respective heirs and legal representatives were brought on record. Therefore, I direct the department concerned before drawing up of this order to correct the cause title inserting the respective names of the heirs and legal representatives of the parties in the cause title of the petition, pursuant to the orders dated 3rd May 1978 and 14th January 1980.
33. All parties concerned are to act on a signed copy of the operative portion of this judgment and order on the usual undertaking.