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TMI Blog1945 (5) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... the decree the mortgaged properties were sold and they were purchased by the decree-holder in January 1938. Some time in 1941, the petitioners filed an application before the Subordinate Judge of Murshidabad under Section 36, Bengal Money Lenders Act of 1940, praying for the re-opening of the mortgage decree 'and other consequential reliefs. The decree-holder resisted the application and contended inter alia that there being no suit or proceeding in connexion with the mortgage debt pending on or after 1st January 1939, the petitioners were entitled to no relief under the Money Lenders Act. The Court heard the parties on this point and accepting the contention of the decree-holder dismissed the application of the mortgagors under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uot; as used in Sub-section (3) of Section 37A, Bengal Agricultural Debtors Act. The question came up for consideration before this Bench in a number of cases, vide Sashi Bhusan v. Motibala Dassi AIR1945Cal317 , Sm. Charubala v. Amulya ('45) 49 C. W. N. 156, Lalit Mohan v. Raghu Das ('45) 49 C.W.N. 157and Bogra Bank v. Ainuddin ('45) 49 C. W. N. 158 and it was held that to "entertain" is to "admit a thing for consideration" and when a suit or proceeding is not thrown out in limine but the Court receives it for consideration and disposal according to law it must be regarded as entertaining the suit or proceeding no matter whatever the ultimate decision might be. Mr. Apurbadhan Mukherji, appearing in support of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t entertaining a suit even when the suit fails on its merits. The cases cited by Mr. Mukherji do not touch the present point at all. What is laid down in all of them is that Section 14, Limitation Act, is applicable when the Court itself decides that it is unable to entertain a suit for want of jurisdiction or other similar grounds; but if the suit is withdrawn by the plaintiff under Order 23, Rule 1, Civil P. C., with liberty to bring a fresh suit, then in computing the period of limitation for the second suit the provisions of Section 14(1), Limitation Act, cannot be invoked. The basis of these decisions is that under Order 23, Rule 2, Civil P. C, the suit withdrawn is to be treated as non-existent for all purposes and if the existence of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be a decision by the other tribunal and a fortiori, the nature of the decision, if in point of fact there is a decision already, is immaterial. In these circumstances, it cannot but be held that the sub-section raises a bar as soon as it is established that there was a suit or application entertained for disposal by a civil Court no matter in whichever way it was actually disposed of. 4. It is true that the mere fact that a suit or application is entered in the register of the Court is not conclusive to show that it was entertained. The question whether it is entertainable or not might be raised at a later stage and the Court might then decide not to entertain the case. It is not necessary for us to formulate exhaustively the differen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estion relating to the merits of the case and is one of the matters in issue which has to be decided by the Court before it can re-open the decree or grant any relief to the borrower. The Court must first entertain the suit or application before these questions are investigated and the mere fact that points are described as preliminary points is really immaterial. In the case before us the mortgage decree was executed and the properties were sold long before 1st January 1939, and no suit or proceeding in connexion with the mortgage debt was pending on or after that date. In these circumstances, if the Court dismissed the application under Section 36, Bengal Money Lenders Act, and held that the borrower was entitled to no relief it cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n operated as a bar to his seeking relief under the Bengal Money Lenders Act. This contention was accepted by Henderson J. and the rule was discharged on that ground. We may say with respect that we are in entire agreement with this decision. In course of the judgment there was another fact noticed by our learned brother namely that even before the borrower approached the Debt Settlement Board there was a still earlier application made by him under Section 36, Bengal Money Lenders Act, but as the decree-holder had not taken any step at that time for execution of the decree the Court rejected the application observing that the borrower might make the application if and when the decree-holder would put the decree into execution. It was observ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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