Nasim Ali, J.:— The respondents obtained against the appellants a final mortgage-decree on February 28, 1939. In execution of this decree the mortgaged properties were sold on July 6, 1940. The sale has not yet been confirmed nor have the decree-holders, who were the purchasers, obtained possession. On September 19, 1940, the appellant made an application for relief under s. 36 of the Bengal Money-lenders Act. The Subordinate Judge, thereupon, reopened the decree and has directed the amount, which is legally-recoverable in view of the provisions of the Bengal Money-lenders Act, to be paid by ten annual instalments. He has further directed that further proceedings in the execution case to be kept in abeyance. The judgment-debtor has appealed to this Court. The decree-holders have also filed cross-objections.
The only contention of the appellant in this appeal is that the Subordinate Judge should have set aside the sale. The argument in support of this contention is that the final mortgage-decree, in execution of which the property was sold, having been set aside, and the decree-holders themselves being the auction-purchasers, the sale has been automatically set aside on general principles of law. But the object of the Bengal Money-lenders Act is to give the judgment-debtor an opportunity to pay off the decretal amount by instalments after the sale and to keep the sale in abeyance for some time in order that the judgment-debtor may pay off the decretal amount by instalments. There is no provision in the Act for setting aside the sale under such circumstances. On the other hand, cl. (e) of sub-s. (2) of s. 36 goes to indicate that, in default of the payment of the instalments ordered under cl. (d) of the said sub-section, after the re-opening of the decree, the decree-holder is to be put in possession of the property sold. The decree-holder can be put in possession of the mortgaged property only on the basis of his purchase. If the sale was intended to be set aside after the re-opening of the decree and the order for instalments under cl. (d) of sub-s. (2) of s. 36, it will not be possible to put the decree-holder in possession of the properties sold as he would have no title to the properties. In the absence of any express provision in the Act for setting aside the sale and in face of the implication to the contrary indicated above, it must be held that the Court has no jurisdiction under the Bengal Money-lenders Act to set aside the sale. It is, however, clear from the provisions of s. 36 that the mortgagor judgment-debtor is entitled to be in possession of the property after the decree has been re-opened and a fresh decree has been made and that so long as there has been no default of the payment of any instalment, the decree-holder has no right to interfere with the possession of the mortgagor.
The appeal, therefore, fails and is dismissed. The cross-objection is not pressed and is, therefore, dismissed.
Parties will bear their own costs in the appeal as well as in the cross-objection.
Rau, J.:— I agree.
Appeal and cross-objection both dismissed.
S.F.A