Case Note & Summary
The dispute arose from a mortgage deed dated April 25, 1930, executed by Anath Nath Mittra to secure repayment of Rs. 2,500 to Haridas Mondal. Mondal filed a mortgage suit in 1937, obtained a preliminary decree and final decree for sale of mortgaged property. The property was sold, and a personal decree under Order 34 Rule 6 CPC was passed on September 7, 1940, for Rs. 2,338.15.0. When Mondal sought execution of the personal decree, Mittra filed his first suit under Section 36 of the Bengal Money-lenders Act, 1940, to reopen the personal decree. In that suit, the Subordinate Judge passed an instalment decree for Rs. 1,431.15.0, which was ultimately upheld by the High Court after appeals. Mittra did not pay the instalments, and Mondal again applied for execution. Mittra then filed a second suit under Section 36, this time seeking reopening of the preliminary and final mortgage decrees. The Subordinate Judge dismissed the suit as barred by res judicata, and the District Judge affirmed. The High Court in second appeal reversed, directing reopening of the preliminary and final decrees and remanding the case for fresh preliminary decree. Mondal appealed to the Supreme Court by special leave. The majority (Kapur and Shah JJ.) held that Section 36 contemplates only one suit for reopening transactions and obtaining complete relief. In the first suit, Mittra had deliberately abandoned his claim to reopen the preliminary and final decrees, as recorded by the District Judge that reopening the entire transaction would not benefit him. The majority applied the principles of res judicata and Order 2 Rule 2 CPC, holding that a claim which could have been but was not made in the earlier suit cannot be raised later. They rejected the argument that the court in the first suit lacked competence to grant relief regarding the preliminary and final decrees, because sub-section (6) of Section 36 vested such power in the court passing the decree, and the first suit was filed in the same court. The majority therefore allowed the appeal, set aside the High Court's order, and dismissed the second suit with costs throughout. Hidayatullah J. dissented, reasoning that when a borrower moves under Section 36, the court has a duty to give full relief even if not specifically asked, and the non obstante clauses in sub-sections (1) and (6) exclude the Code of Civil Procedure and equity; hence no waiver or constructive res judicata could bar the second suit. The final decision favored the decree-holder/appellant.
Headnote
A) Money Lending - Reopening of Transactions - Successive Suits - Bengal Money-lenders Act, 1940, Section 36; Code of Civil Procedure, 1908, Section 11, Order 2 Rule 2 - Borrower filed first suit under Section 36 to reopen only personal decree and deliberately abandoned claim to reopen preliminary and final mortgage decrees; thereafter filed second suit to reopen those decrees - Majority held that Section 36 contemplates one suit for obtaining complete relief under the Act; if borrower fails to seek entire relief or abandons part, subsequent suit is barred by res judicata and Order 2 Rule 2 CPC - Held that the second suit was not maintainable and was dismissed with costs throughout. B) Money Lending - Duty of Court to Grant Full Relief - Non Obstante Clauses - Bengal Money-lenders Act, 1940, Section 36(1),(6); Code of Civil Procedure, 1908 - Dissenting view: when borrower moved under Section 36, court had statutory duty to give full relief even if not asked; non obstante clauses in sub-sections (1) and (6) excluded CPC and equity; no waiver or constructive res judicata could arise - Held (per Hidayatullah J. dissenting) that the second suit was maintainable because remedies under the Act were not exclusive and intended to give widest possible relief to borrowers.
Issue of Consideration
Whether a second suit under Section 36 of the Bengal Money-lenders Act, 1940 for reopening preliminary and final mortgage decrees is barred by res judicata or Order 2 Rule 2 CPC when the borrower had earlier filed a suit under Section 36 and deliberately abandoned the claim to reopen those decrees; whether the court in such suit is under a duty to grant full relief notwithstanding the borrower's failure to claim it
Final Decision
Majority allowed the appeal, set aside the High Court's order, and dismissed the respondent's second suit No. 105 of 1947 with costs throughout. The second suit for reopening preliminary and final mortgage decrees was barred by res judicata and Order 2 Rule 2 CPC because the borrower had abandoned that claim in the first suit under Section 36.
Law Points
- Section 36 of Bengal Money-lenders Act
- 1940 contemplates one suit and not successive suits for reopening transactions
- principle of res judicata and Order 2 Rule 2 CPC apply to suit under Section 36
- abandonment of claim to reopen preliminary and final decrees in earlier suit precludes later suit for same relief
- non obstante clauses in Section 36 do not exclude CPC or equity per majority
- dissenting view holds court has duty to give full relief and no waiver or constructive res judicata arises
