1949 (3) TMI 34 - Other - Indian Laws

Summary

Issues Involved
1. Competence of the appeal.
2. Competence of the revision application to the High Court.
3. Whether the loan was a "commercial loan" under the Bengal Money-lenders Act, 1940.
4. Whether the suit was a "suit to which this Act applies" as defined by the Act.
5. Jurisdiction and powers of the High Court under Section 115, Civil Procedure Code (CPC).
6. Interpretation of the compromise decree and its implications on the right to obtain a personal decree.

Detailed Analysis

1. Competence of the Appeal
The respondents raised a preliminary objection that the appeal was incompetent as leave to appeal to the Board was granted under Section 109(a) of the Civil Procedure Code (CPC), which relates to appeals from decrees or final orders passed on appeal, not orders passed in revision. The Board noted that the certificate granting leave to appeal was not produced by the respondents, and thus their preliminary objection failed.

2. Competence of the Revision Application to the High Court
The appellant contended that the revision application to the High Court was incompetent. Section 115 of the CPC allows the High Court to interfere in cases where a subordinate court has exercised a jurisdiction not vested in it by law, failed to exercise a jurisdiction so vested, or acted illegally or with material irregularity. The Board found that the Subordinate Judge, having held that the loan was a commercial loan, failed to exercise jurisdiction vested in him by law by not considering the respondents' application under Sections 30 and 36 of the Act. Consequently, the High Court was within its powers to interfere in revision.

3. Whether the Loan was a "Commercial Loan"
The Subordinate Judge initially held that the loan was a commercial loan, which would exclude it from the Act's provisions. However, the High Court disagreed, interpreting the mortgage document to mean that the loan was not solely for business purposes but also for "other expenses." The Board concurred with the High Court, stating that the appellant failed to discharge the burden of proving the loan was a commercial loan.

4. Whether the Suit was a "Suit to which this Act Applies"
The Act defines such suits as those instituted or pending on or after 1st January 1939. The Subordinate Judge and the High Court both found that the suit was pending on this date, primarily due to an application under Rule 100, Order 21, which was outstanding. The Board agreed, noting that the right to obtain a personal decree under Order 34, Rule 6, CPC, kept the suit pending.

5. Jurisdiction and Powers of the High Court under Section 115, CPC
The appellant argued that the High Court had no power to interfere under Section 115, CPC, merely because it disagreed with the Subordinate Judge's decision. The Board clarified that while an error in a decision does not by itself justify revision, a subordinate court's erroneous decision that results in exercising jurisdiction not vested in it, or failing to exercise jurisdiction so vested, does justify revision. The High Court acted correctly under Section 115(b) of the CPC.

6. Interpretation of the Compromise Decree and its Implications on the Right to Obtain a Personal Decree
The appellant contended that the compromise decree already contained a personal decree, negating the need for a future decree. The Board examined the compromise decree and found it did not amount to a personal decree for payment but rather a consent to a personal decree if a balance was found due after sales. Thus, the right to obtain a personal decree was still open, making the suit pending on 1st January 1939.

Conclusion
The Board dismissed the appeal, upholding the High Court's judgment that the loan was not a commercial loan and that the suit was pending on the relevant date, thus falling within the Act's provisions. The High Court's exercise of revisional jurisdiction under Section 115(b) of the CPC was deemed appropriate.