A) ABSTRACT / HEADNOTE

The case Kumar Pashupatinath Malia & Another v. Deba Prosanna Mukherjee (1951 SCR 572) explores the intricate relationship between execution proceedings and the applicability of the Bengal Money Lenders Act, 1940, particularly Section 36, and how proceedings prior to 1st January 1939 may or may not fall under the Act. The core legal issue was whether a decree passed before 1939, followed by execution proceedings struck off with the attachment kept alive, can qualify as a “suit to which this Act applies” under Section 2(22). The suit also addressed whether a sub-mortgagee qualifies as an assignee under Section 36(5) to claim statutory protection. The case contains split judicial opinion—Justice Das ruled in favour of the respondent and dismissed the appeal, while Justice Patanjali Sastri partially dissented on the applicability of the Act but concurred with the final outcome due to Section 36(5) protection. The judgment is notable for its doctrinal clarity on execution law under Order XXI Rule 57 CPC and statutory interpretation regarding retrospective application of welfare legislation like the Money Lenders Act.

Keywords: Bengal Money Lenders Act, Execution Proceedings, Sub-mortgagee, Order XXI Rule 57 CPC, Assignee Rights, Retrospective Application, Suit to Which Act Applies

B) CASE DETAILS

i) Judgement Cause Title
Kumar Pashupatinath Malia & Another v. Deba Prosanna Mukherjee

ii) Case Number
Civil Appeal No. 90 of 1960

iii) Judgement Date
4 May 1951

iv) Court
Supreme Court of India

v) Quorum
Chief Justice Hiralal Kania, Justice S.R. Das, and Justice Patanjali Sastri

vi) Author
Justice S.R. Das

vii) Citation
1951 SCR 572

viii) Legal Provisions Involved

• Bengal Money Lenders Act, 1940: Section 2(22), Section 36(1), Section 36(5)

• Civil Procedure Code, 1908: Order XXI Rule 57

• Transfer of Property Act, 1882: Section 53

• Indian Evidence Act, 1872

ix) Judgments overruled by the Case (if any)
None

x) Case is Related to which Law Subjects

• Civil Procedure

• Banking & Finance Law / Money Lending Law

• Property and Mortgage Law

• Statutory Interpretation

C) INTRODUCTION AND BACKGROUND OF JUDGEMENT

The legal dispute originates from a mortgage and sub-mortgage transaction going as far back as 1908. A receiver, appointed in a partition suit concerning the Searsole Raj Estate, mortgaged and leased out significant mining properties with court permission. This led to a long-standing mortgage debt which, over time, underwent sub-mortgaging, court sales, and a personal decree. The Bengal Money Lenders Act, enacted in 1940 to protect borrowers from exploitative lending, provided a mechanism to re-open old decrees under certain conditions. The appellants, legal heirs of the original borrower Raja Pramatha Nath Malia, sought protection under this Act in 1941.

They claimed the earlier decrees, including a personal decree obtained in 1935 and its execution proceedings, fell under the term “a suit to which this Act applies”. They relied on the fact that although the execution case filed in 1936 was dismissed in 1937, the attachment of property continued. On this technicality, they sought reopening under Section 36.

D) FACTS OF THE CASE

On 10 August 1908, a court-appointed receiver mortgaged and leased two mining properties to Laik Banerjee & Co., a firm that advanced Rs. 1,00,000. The mortgage was for 999 years, and over time, the respondent, Deba Prosanna Mukherjee, became the mortgagee’s legal successor. In 1922, he filed Suit No. 78 to enforce the mortgage and obtained a final decree for sale in 1929, purchasing the mortgaged properties for Rs. 59,000. As the sale did not cover the debt, he obtained a personal decree for Rs. 1,27,179 in 1935.

Execution Case No. 118 of 1936 followed, resulting in attachment of certain properties. However, due to settlement talks, the decree-holder sought the execution to be dismissed for non-prosecution but requested the attachment to continue. The court passed an order on 30 January 1937 accordingly. In 1939, the decree was satisfied through property transfer, and on 2 June 1939, the court cancelled the attachment and recorded the decree as adjusted.

Following the enactment of the Bengal Money Lenders Act in 1940, the appellants, legal heirs of the borrower, filed a suit under Section 36 to reopen the transaction and seek relief. The core question was whether execution was pending on 1 January 1939, qualifying it under Section 2(22).

E) LEGAL ISSUES RAISED

i) Whether the execution proceeding struck off in 1937 with continued attachment constituted a “pending proceeding” under Section 2(22) of the Bengal Money Lenders Act on 1 January 1939?

ii) Whether the suit filed under Section 36(2) of the Act could reopen a decree not passed in a suit to which the Act applied?

iii) Whether a sub-mortgagee is considered an assignee under Section 36(5) and thereby protected from relief provisions under the Act?

F) PETITIONER/ APPELLANT’S ARGUMENTS

i) The counsels for Petitioner / Appellant submitted that:

• The execution proceeding, although dismissed in 1937, continued effectively due to ongoing attachment.

• They relied on Patanjali Sastri J’s interpretation that attachment itself is a continuing execution proceeding.

• They argued that the decree remained unsatisfied as of 1 January 1939 and hence fell under Section 36(1) and the proviso.

• The appellants asserted the right to reopen transactions under Section 36(2).

• They further challenged the respondent’s claim to protection under Section 36(5), denying the sub-mortgagee’s status as an assignee.

G) RESPONDENT’S ARGUMENTS

i) The counsels for Respondent submitted that:

• The execution proceeding ended with the court’s final order of dismissal on 30 January 1937.

• The attachment continuation was due to a special order under Order XXI Rule 57, not because of pending execution.

• The petition of 1939 merely certified decree satisfaction and did not amount to an execution proceeding.

• They argued that Section 36(2) could not apply as no qualifying suit or execution was pending post-January 1939.

• They invoked Section 36(5), asserting the respondent’s sub-mortgagee status includes full assignment rights, and relied on Promode Kumar Roy v. Nikhil Bhusan Mukhopadhya [(76 I.A. 74)].