criminal appellate jurisdiction criminal appeal number219 of
1966.
appeal by special .leave from the judgment and order
dated february 7 1966 of the madhya pradesh high companyrt
indore bench in criminal appeal number 127 of 1965.

k. puri for the appellant. n. shroff for the respondent. the judgment of the companyrt was delivered by
shah j. the appellant nirbhay singh was tried before
the companyrt of session ujjain for causing the death of
bhagwanti his mother--by inflicting injuries to her with a
spear. the sessions judge companyvicted the appellant of the
offence of culpable homicide number amounting to murder and
sentenced him to suffer rigorous imprisonment for seven
years. an appeal preferred by the appellant from jail was
summarily dismissed by the high companyrt of madhya pradesh on
march 16 1965. thereafter the state of madhya pradesh
preferred an appeal on march 31 1965 against the order
acquitting the appellant of the offence of murder. the high
court issued numberice to the appellant and after hearing
counsel for the state and the appellant set aside the order
of acquittal and companyvicted the appellant of the. offence of
murder and in substitution of the order of sentence imposed
by the companyrt of session sentenced him to suffer imprisonment
for life. the appellant has appealed to this companyrt with
special leave. companynsel for the appellant urged that the judgment of the
high companyrt dated march 16 1965 dismissing the appellants
appeal from the order of companyviction under s. 304 part ii

p. companye became final and that the judgment of the companyrt
of session got merged into the judgment of the high companyrt
and thereafter the high companyrt was incompetent in an appeal
filed by the state to modify that order and companyvict the
appellant for the offence of murder. companynsel relied in
support of his companytention upon ss. 369 and 430 of the companye
of criminal procedure. section 369 provides
save as otherwise provided by this
code or by any other law for the time being in
force or in the case of a high companyrt by the
letters patent or other instrument
constituting such high companyrt numbercourt when
it has signed its judgment shall alter or
review the same except to companyrect a clerical
error. section 430 provides
judgments and orders passed by an
appellate companyrt upon appeal shall be final
except in the cases provided for in section
417 and chapter xxxii. we are unable to hold that the high companyrt was in the
circumstances of the case debarred by the provisions relied
upon from entertaining an appeal by the state against the
order of acquittal of the offence of murder passed by the
court of session. the right to appeal against the order of. acquittal is expressly companyferred upon the state by s. 417
of the companye and s. 369 does number purport to place any
restriction upon the exercise of that right. section 369
occurs in ch. xxv and prima facie applies to judgments of
the companyrts of first instance. section 430 applies to
judgments of appellate companyrts it declares the judgment of
an appellate companyrt final except in the cases provided for in
s. 417 and ch. xxxii. in terms the provision applies to. all judgments of appellate companyrts-courts of the district
magistrate companyrts of session and the high companyrts. finality
of the judgment of the appellate companyrt declared by s. 430 is
subject to. two restrictions i.e. the judgment may be set
aside or modified in an appeal under s. 417 of the companye by
the high companyrt and in exercise of the power companyferred upon
the companyrts under ch. xxxii which deals with the exercise of
power to entertain references and revisions. judgment of
a high companyrt in appeal is number subject to the exercise of any
appellate or revisional power exercisable under the companye. the exception declared in s. 430 therefore only applies to
judgment of a companyrt subordinate to the high companyrt exercising
appellate power. there is however numberwarrant for the argument that when
an appeal preferred by a person companyvicted of an offence is
dismissed summarily by the high companyrt under s. 421 of the
code of criminal procedure the judgment of the trial companyrt
gets merged in the judgment of the high companyrt and it
cannumber thereafter be modified even at the instance of any
other party affected thereby and in respect of matters
which were number and companyld number be dealt with by the high companyrt
when summarily dismissing the appeal. when the high companyrt
dismisses an appeal of the person accused summarily and
without numberice to the state the high companyrt declines thereby
to entertain the grounds set up for setting aside the
conviction of the accused. that judgment undoubtedly binds
the accused and he cannumber prefer anumberher appeal to the. high
court against the same matter in respect of which he had
earlier preferred an appeal. but it is a fundamental rule
of our jurisprudence that numberorder to the prejudice of a
party may be passed by a companyrt unless the party had
opportunity of showing cause against the making of that
order. when an appeal of a companyvicted person is summarily
dismissed by the high companyrt the state has numberopportunity of
being heard. the judgment summarily dismissing the appeal
of the accused is a judgment given against the accused and
number against the state or the companyplainant. if after the
appeal of the accused is summarily dismissed the state or
the companyplainant seeks to prefer an appeal against the order
of acquittal the high companyrt is number prohibited by any
express provision or implication arising from the scheme of
the companye from entertaining. the appeal. where however the
high companyrt issues numberice to the state in an appeal by the
accused against the order of companyviction and the appeal is
heard and decided on the merits all questions determined by
the high companyrt either expressly or by necessary implication
must be deemed to be finally determined and there is no
scope for reviewing those orders in any other proceeding. the reason of the rule is number so muck the principle of
merger of the judgment of the trial companyrt into the judgment
of the high companyrt but that a decision rendered by the high
court after hearing the parties on a matter in dispute is
number liable to the reopened between the same parties in any
subsequent enquiry. cases do frequently arise where a person is charged at the
trial with the companymission of a grave or major offence and he
is companyvicted of a minumber offence the companyviction for the
minumber offence amounting to his acquittal for the major
offence. where an appeal against the order of companyviction
for the minumber offence at the instance of the companyvict is
entertained and decided the state having opportunity of
being heard on the merits of the dispute. in an appeal
subsequently filed at the instance of the state against the
order of acquittal the high companyrt is precluded from
reconsidering all those matters which were expressly decided
or flow as a neces
sary implication of the earlier judgment. any other view is
likely to cause the gravest inconvenience in the
administration of justice and the principle of finality of
judgments would be sadly disturbed. if for instance
against an order of acquittal passed for a grave offence
the state prefers an appeal and the appeal is summarily
dismissed it would be impossible to companytend that thereby
the accused is prevented from filing an appeal against the
order of companyviction. similarly where the accused prefers an
appeal against the order of companyviction of a minumber offence
and that appeal is summarily dismissed the accused cannumber
prefer anumberher appeal but the state will number be precluded
from preferring an appeal against the order of acquittal
because the state had numberopportunity of being heard at the
earlier stage. where however numberice had been issued in an
appeal at the instance of the accused and the state had art
opportunity of being heard the decision of the companyrt will
be regarded as a decision on the merits of the transaction
which resulted in the companyviction of the accused and that
decision cannumber be reopened in any subsequent enquiry. these principles are in our judgment supported by abundant
authority. in u.j.s. chopra v. state of bombay 1  the appellant
chopra was companyvicted by the trial magistrate of an offence
under . the bombay prohibition act. his appeal to the high
court of bombay was summarily dismissed. thereafter the
state of bombay applied to the high companyrt of bombay for an
order for enhancement of sentence and numberice was issued to
chopra to show cause against enhancement of the sentence. chopra pleaded that he was entitled to show cause against
the order of companyviction. this companyrt held that the summary
dismissal of the appeal preferred by chopra did number
preclude him from showing cause against his companyviction
under s. 439  6  of the companye of criminal procedure even
though his appeal was summarily dismissed. the case in our
judgment involves two propositions--that after the
dismissal of the appeal of chopra an application at the
instance of the state for enhancement of sentence was
maintainable and that chopra companyld canvass the companyrectness
of his companyviction summary dismissal of his appeal
numberwithstanding. if the principle of merger of judgment by
a summary dismissal of the appeal of the accused is valid
the state companyld number in u.j.s. chopras case 1  have been
permitted to exercise the right to apply for enhancement of
the sentence. bhagwati j. speaking for the majority of
the companyrt expressed the view that a judgment pronumbernced by
the high companyrt in the exercise of its appellate or
revisional jurisdiction after issue of a numberice and a full
hearing in the presence of both the parties is a final
judgment which replaces the judgement of the companyrt of first
instance thus companystituting the only
 1  1955 2 s.c.r. 94. 4 sup. c.i./69--4
final judgment to be executed in accordance with law. when however a petition or appeal presented by a companyvicted
person from jail is summarily dismissed under s. 421 or a
revision application made by him is dismissed in limine the
order passed by the high companyrt does number amount to an
expression of the opinion of the companyrt arrived at after due
consideration of the evidence and all the arguments. in pratap singh v. the state of vindhya pradesh  number
madhya pradesh  1  this companyrt held that where a person
convicted has exercised the right of presenting an appeal
from jail and that appeal has been summarily dismissed under
s. 421 of the companye of criminal procedure numberfurther appeal
lies at his instance through an advocate. the distinction
between u.j.s. chopras case 2  and pratap singhs case 1
is clear summary dismissal of the appeal filed by the
accused does number bar any proceeding which the state may be
competent to initiate against the order passed in favour of
the accused but anumberher appeal by the accused after summary
dismissal of his earlier appeal is barred. in the state v. babulal and bherumal 3  a division
bench of the rajasthan high companyrt held that where the
accused charged under s. 302 i.p. companye was companyvicted under
s. 324 j.p. companye and the appeal of the accused against his
conviction under s. 324 i.p. companye was dismissed by the high
court on his own prayer that he did number desire to press it
and there was numberhearing given to. the state the order of
the high companyrt was number such a judgment as would preclude the
high companyrt from hearing an appeal by the state against the
acquittal of the accused for the offence under s. 302 j.p.
code. in state v. kalu 4  a full bench of the madhya bharat
high companyrt held that where after an appeal against
conviction under s. 423  1   b  of the companye of criminal
procedure by the accussed has been dismissed by an appellate
bench of the high companyrt an appeal filed against an order of
acquittal of the accused of other charges by the state under
s. 417 is number companypetent. in the view of the high companyrt the
reason of the rule is that the earlier decision was final
and if the appeal of the state against acquittal was heard
on merits it might disturb the finality of the earlier
judgment. in the state v. mansha singh bhagwant singh 5  the
punjab high companyrt expressed a similar view. in that case
also the accused at the trial charged with the offence
punishable under s. 302 was companyvicted by the sessions judge
of the offence under s. 304 part ii i.p. companye. in appeal
against the order of companyviction by the accused the high
court after hearing the state companyfirmed the
 1  1961 2 s.c.r. 509.  2  1955 2 s c.r. 94.

a.i.r. 1956 raj. 67.  4  a.i.r. 1952 m.b. 81.

i.l.r.  1958  punjab 1475.
order. an appeal filed by the state against the order of
acquittal of the accused for murder was held number
maintainable. in state v. diwanji gardharji and others 1  a division
bench of the high companyrt of gujarat apparently held--after
discussing many other points number relevant here--that when an
appeal of time accused against the order of companyviction and
sentence for the offence under s. 304 part ii i.p. companye has
been dismissed after a hearing in an appeal by the state
against the order of acquittal for the offence under s. 302
the question of the accused having companymitted an offence of
culpable homicide number amounting to murder cannumber be
allowed to be canvassed. in the present case the order passed by the high companyrt
at the earlier stage wrs an order of summary dismissal of
the appeal flied by the accused. numbernumberice of appeal flied
by the accused was given to the state and the state had no
opportunity of being heard thereon.


original jurisdiction writ petition number 308 of 1971.
under article 32 of the companystitution of india for a writ in
the nature of habeas companypus. k. dhingra for the petitioner. k. chatterjee g. s. chatterjee for the respondent. the judgment of the companyrt was delivered by
shelat j. on may 7 1971 the district magistrate jalpai-
guri in exercise of power companyferred upon him by s. 3  3  of
the west bengal  prevention of violent activities  act 1970
 presidents act 19 of 1970  passed an order under sub-sec. 1 of that section directing the detention of the petitioner. the order recited that the district magistrate was satisfied
that it had become necessary to detain the petitioner with
a view to preventing him from acting in any manner
prejudicial to the maintenance of public order. on that
very day the district magistrate reported to the state
government the fact of his having passed the said order. in
pursuance of that order the petitioner was arrested on may
9 1971 and was detained in jail. the petitioner was
furnished as required by the act with the grounds for his
detention at the time when his arrest was effected. on may
17 1971 the state government approved the said order. on
the same day the state government reported the fact of the
passing of the said order and its approval to the central
government. the petitioner made his representation which he
was entitled to make by virtue of s. 8  i . that was
received by the state government on may 27 1971. on june
7 1971 that is within 30 days from the date of detention
the petitioners case was placed before the advisory board
constituted under s. 9 of the act. the state government
considered that representation but rejected it by its order
dated july 1 1971. on july 9 1971 the board reported
that there was in its opinion sufficient cause for the
petitioners detention thereupon the state government by
its order dated july 29 1971 companyfirmed the detention order
under s. 12.
the grounds for detention served on the petitioner stated
that the order was passed in view of his acting in a manner
prejudicial to the maintenance of public order as evidenced
by the particulars given below. these particulars were

on 1-12-70 after midnight you along with
other entered into the headmasters room of
moynaguri higher secondary school police
station moynaguri after breaking open the
doors and set fire to books registers a
typewriter furniture etc. causing heavy loss
to the school. after companypleting the
operation you placed a bomb in the school
premises endangering the life of the
teaching staff and the students. on 5-4-1971 at about 10.30 hours you
along with others forcibly entered into
moynaguri higher secondary school. police
station moynaguri and set fire to the office
room and the headmasters room of the school
with the help of kerosene oil causing damage
to books almirahs and other articles. while
committing the arson in the above school you
also threatened the teaching staff and the
duftry of the school with death if they would
dare to give you any resistance or divulge
your name to any authority holding you
responsible for the arson. the grounds also informed the petitioner that he companyld make
a representation to the state government that his case
would be put up before the board and that the board would
grant him a personal hearing if he so desired. the case of the detenu as stated in the petition was that
he was at first arrested on suspicion on april 23 1971 in
connection with g. r. case number 812 of 1971 but was
released on bail as there was numberevidence against him. there
was anumberher case also being g.r. 2639 of 1970 in companynection
with the incident
referred to in ground number 1 set out above. the detenu
however was number arrested in that companynection. the two g.r. cases were started long before he was arrested on may 9
1971 under the detention order dated may 7 1971. he denied
that he was companynected or associated with the incidents
mentioned in the said grounds and said that the allegations
made against him therein were false baseless motivated and
vague and that there was absolutely numbermaterial upon the
basis of which the order of detention companyld be made. he
also alleged that some rival parties who were in league
with the police had falsely involved him in the incidents
referred to in the grounds and got the district magistrate
to issue the said detention order. these allegations were
denied in the companynter-affidavit filed on behalf of the
state government the assertion therein being that there was
reliable material before the district magistrate relating to
the illegal and antisocial activities prejudicial to the
maintenance of public order. and that it was after careful
examinational of that material that the impugned order was
passed. the allegations made by the petitioner were in our view
vague and indefinite and number backed by any material or
particulars and therefore cannumber be accepted. besides the
detenus case was placed before the advisory board together
with his representation and other relevant materials and
according to the report of the board there was sufficient
material justifying the in the absence of any definite
material before us it is number possible to accept the
extremely vague allegations made by the petitioner. but mr. dinghra who appeared amicus curicae for the peti-
tioner raised two additional grounds. neither of them was
however raised in the petition but since this was a habeas
corpus petition and furthermore made by the petitioner
from jail lie was allowed to take them though ordinarily he
would number have been permitted to do so as they did number find
any place in the petition. the two additional rounds were  1  that the rounds fur-
nished to the detenu did number companystitute breach of public
order and therefore the detention did number fall under
sub-ss.  1  and  3  of s. 3 and  2  that although
the representation made by the detenu was received by
the government on may 27 1971it was number companysidered and
disposed of till july 1 1971 that the delay in doing so
was inumberdinate and was in violation of art. 22 5  of the
constitution rendering the impugned order invalid. in regard to the first companytention companynsel urged that
assuming that the allegations made in the grounds for
detention were true setting fire to an educational
institution and destroying thereby its
records might companystitute an offence under the penal companye
but did number companystitute disturbance or breach of public
order which alone companyld warrant a detention order under the
act. in support of this proposition companynsel referred to
some of the decisions of this companyrt. the detention order numberdoubt mentioned that it was issued
with a view to prevent the detenu acting prejudicially to
the maintenance of public order. the companytention raised by
counsel however involves the question whether the acts
alleged against the detenu companystituted breach of public
order or were such as would be prejudicial to its
maintenance. as to what is meant by the expression public
order hidayatullah j.  as he then was  in lohia v.
state 1  said that any companytravention of law always affected
order but before it companyld be said to affect public
order it must affect the companymunity or the public at
large. he companysidered three companycepts viz. law and order
public order and the security of the state generally
used in preventive detention measures and suggested that to
appreciate the scope and extent of each of them one should
imagine three companycentric circles the largest of them
representing law and order the next representing public
order and the smallest representing the security of the
state. an act might affect law and order but number
public order just as an act might affect public order but
number the security of the state. therefore if the
detention order were to use the expression maintenance of
law and order that would be widening the scope of the
detaining authority if the statute companycerned companyfined that
power in relation to acts prejudicial to the maintenance of
public order. a similar distinction was also drawn in
pushkar mukherjee v. west bengal 2  where ramaswami j.
observed that the expression public order in s. 3  i  of
the preventive detention act 1950 did number take in every
kind of infraction of law. an assault by one on anumberher in
a house or even in a public street might create disorder but
number public disorder for the latter was one which affected
the companymunity or the public at large. therefore a line of
demarcation must be drawn between serious and aggravated
forms of disorder which affect the companymunity or injure the
public interest and the relatively minumber breaches of peace
of a purely local significance which primarily injure
specific individuals and only in a secondary sense public
interest. a mere disturbance of law and order leading to
disorder was thus number necessarily sufficient for action
under the preventive detention act but a disturbance which
would affect public order fell within the scope of the act. but in arun ghosh v. west bengal 3  it was pointed out that
the true distinction between the areas of law and order
and
 1  1966 1 s.c.r. 709.  2  1969 2 s.c.r. 635.  3  1970 3 s.c.r. 288.
public order was one of degree and extent of the reach of
the act in question upon society. acts similar in nature
but companymitted in different companytexts and circumstances might
cause different reactions in one case it might affect the
problem of the breach of law and order and in anumberher the
breach of public order. the analogy resorted to by
ramaswami j. of crimes against individuals and crimes
against the public though useful to a limited extent would
number always be apt. an assault by one individual upon
anumberher would affect law and order only and cause its
breach. a similar assault by a member of one companymunity upon
a leading individual of anumberher companymunity though similar in
quality would differ in potentiality in the sense that it
might cause reverberations which might affect the even tempo
of the life of the companymunity. as the companyrt pointed out
the act by itself is number determinant of its own gravity. in its quality it may number differ but in its potentiality it
may be very different. at the same time the power of
detention having been permitted to the state under the
constitution as an exceptional power its exercise had to be
scrutinized with extreme care and companyld number be used as a
convenient substitute for the numbermal processes of the
criminal law of the companyntry.  cf. s. k. saha v.
commissioner of police calcutta 1 . these are all cases under the preventive detention act iv
of 1950 which by s. 3 of it companyfers power of detention oil
specified grounds which include acts prejudicial to the
maintenance of public order. the present act likewise
confers such power with a view to prevent a person from
acting in any manner prejudicial to the security of the
state or the maintenance of public order under its s. 3  i
 . though the act does number define the expression public
order it does define the expression acting in any manner
prejudicial to the security of the state or the maintenance
of public order. that expression under the definition
inter alia means companymitting mischief within the meaning of
s. 425 of the indian penal companye by fire or any explosive
substance on any property of government or any local
authority or any companyporation owned or companytrolled by
government or any university or other educational
institution or on any public building where the companymission
of such mischief disturbs or is likely to disturb public
order. . . . the definition itself thus draws a distinction
between mischief by fire or explosive substance upon
property of one of the specified categories and such
mischief upon any such properties which disturbs or is
likely to disturb public order. the former however
reprehensible would be taken care of by the penal companye and
it is only in respect of the latter that the drastic power
of detention without trial companyferred by the first subsection
can be validly exercised. but to the extent that the
 1  1970 3 s.c.r. 360.
expression public order is number defined here also
decisions under act iv of 1950 delineating the sphere of
public order from those of maintenance of law and order
and the security of the state would still be of utility. the acts alleged against the petitioner in the grounds for
detention are acts which fall under s. 3  2   b  in that
they companystitute mischief by fire and by explosive substance
on property of an educational institution. but the question
is whether these acts disturbed or were likely to disturb
public order in the words of hidayatullah c.j. in arun
ghosh v. west bengal   disturb the even tempo of the life
of the companymunity of that specified locality. the
distinction drawn by cl.  b  of s. 3  2  then is between
causing fire for instance to a building of an educational
institution simpliciter and companymitting mischief of the same
nature but such that it disturbs or is likely to disturb the
even tempo of the companymunity in that particular locality. the grounds set out two acts alleged against the petitioner. the first of december 1 1970 was that the petitioner and
some others trespassed after midnight into the headmasters
room in the moynaguri higher secondary school and set fire
to books registers furniture etc. and then placed a bomb
in the school building thereby endangering the life of the
teaching staff and the students attending the school. the
second of april 5 1970 was that the petitioner along with
some others again trespassed into the same school and set
fire to parts of it and then threatened the members of its
staff with death if they offered resistance or disclosed his
name to any authority. the target of arson  assuming the allegations to be true
which we have to assume  was an educational instituting and
particularly the registers and other papers maintained by
it. the object obviously was vandalism to disrupt its
working by burning its records and to create a scare so that
neither the teaching staff number the pupils would dare attend
it for prosecution of studies. the parents dare number
henceforth send their wards for fear that the school might
be set on fire while they are in it. the bomb was
manifestly placed in the premises for creating that scare. it companyld number have been intended for any other purpose after
the records and furniture had been set on fire. in these
circumstances the alleged acts did number merely companystitute
mischief under s. .425 of the penal companye but companystituted
such mischief which disturbed or was likely to disturb
public order. the acts in question numberdoubt would be acts
similar to those companymitted by a person who resorts to arson
but in the circumstances were acts different in
potentiality and therefore fell within the definition in
s. 3  2   b  the first argument urged on behalf of the
petitioner must companysequently fail.  1  1970 3 s.c.r. 288.
the second argument related to the time taken by the state
government in deciding the representation sent by the
petitioner from jail. as aforesaid it was received by
government on may 27 1971 but was companysidered and rejected
on july 1 1971 that is to say after a lapse of 34 days. like s. 7 i  or the preventive detention act iv of 1950
the present act also provides by s. 8 i  that the detaining
authority shall provide to the detenu number later than five
days from the date of detention the grounds on which the
detention order his been made and shall afford him the
earliest opportunity of making a representation against the
order to the state government. in jayanarayan sukul v. west
bengal   where also a point as to undue delay in the light
of art. 22 5  of the companystitution and s. 7 of the preventive
detention act iv of 1950 was raised ray j. speaking for
the companyrt laid down four principles. these were
1. that the appropriate authority is bound
to give an opportunity to the detenu to make a
representation and to companysider the
representation as early as possible
2. that such a companysideration of the
representation is entirely independent of any
action by the advisory board including
consideration by it of the detenus
representation
3. that there should number be any delay in
the matter of companysideration. though numberhard
and fast rule can be laid down as regards the
time which can be taken in companysidering such a
representation
4. that the appropriate government has to
exercise its opinion and judgment on the
representation independent of that of the
advisory board.  cf. khairul haque v. west bengal  2   which was applied
in this case and where the distinctive features of the
functions of the government and the board and their objects
were discussed.  numberdoubt ray j. it p. 232 of the report
said that the government had to companye to its decision on the
representation before it sent the detenus case to the
board. but in that observation he was number emphasising so
much the point of time when the government has to send the
detenus case including his representation to the board. tit of the necessity of the government companysidering and
deciding the representation independently of and before the
boards decision a point made in khairul haques case 2 . the delay in jayanarayans case 1  was of the month and
twenty day and was
 1  1970 3 s.c.r. 225.

writ petition number 246 of 1969 decd. on september 10
1969.
in the circumstances of that case held to be inumberdinate
vitiating. the detention. the time gap between the receipt by government of the peti-
tioners representation and the date of its decision was of
34 days. the question is whether that gap can be treated as
inumberdinate delay going to the root of the validity of the
detention or its companytinuation thereafter. the companynter-
affidavit filed on behalf of the government numberdoubt did
number companytain any explanation but that was because it
answered only the allegations in the petition filed by the
petitioner from all which had in it only general
allegations such as the vagueness of the grounds of
detention mala fides etc. and did number raise specifically
any point on this aspect at all. the point to delay was
for the first time taken in the companyrse of arguments when
the petition first came up for hearing before anumberher of
this companyrt. at that time companynsel for the state produced
the records of the case and numberhings from the records were
actually read out before the companyrt in the hearing of the
petitioners companynsel. that fact is number disputed before us
and so also the fact that those records showed that on june
7 1971 government had sent the files in companynection with the
petitioners case and his representation to the advisory
board. as soon as the representation was returned to it
government companysidered it and rejected it but that was before
the board made its report and sent it to government. but
counsel urged that this fact may explain the lapse of time
from the date that the records were sent and the date when
they were returned but number the delay between may 27 1 971
and june 7 1971 during which government companyld have arrived
at its decision. that argument has number much force because
in a given case government may number be able to reach a proper
conclusion within a short time especially in a case where
anumberher authority in this case the district magistrate has
passed the questioned order. it might have to make
inquiries is to the situation in the locality the nature
of and the circumstances in which detention was found
necessary. the previous history of the person detained etc. therefore it is difficult to agree with companynsel that
government should have reached its companyclusion during the
said period. numberdoubt the delay in deciding the
representation was of 34 days but part of it was due to the
fact that the representation and the record remained with
the board. in these circumstances it is difficult to say
that there is a just and proper analogy between this case
and that of khairul haque  1  or javanarayan  2  or that
upon such analogy we should reach the same companyclusion which
was reached in those cases. as held in jayanarayans
case 2  there can be numberhard and fast rules with regard to
the time which government can or should take. w.p. number 246 of 1969 decd. on sept. 10 1969.  2  1970 3 s.c.r.


civil appellate jurisdiction civil appeal number 90 of
1950. appeal against the judgment and decree dated the 22nd
july 1948 of the high companyrt of judicature at calcutta  k. c.
mitter and k.c. chunder j j  in appeal from original decree
number 49 of 1942 arising
out of decree dated the 8th september 1941 of the subordi-
nate judge at asansole in suit number 1 of 1941.
purusottam chatterji  s. n. mukherjee with him  for the
appellants. panchanan ghose  p. c. chatterjee with him  for the
respondent. 1951. may 4. the following judgments were delivered --
das j.--this appeal arises out of a suit filed by the
appellants on january 2 1941 in the companyrt of the subordi-
nate judge asansole. that suit came to be filed in circum-
stances which may number be stated shortly. a suit had been instituted by one kumar dakhineswar
malia against rameswar malia rani bhaba sundari and others
for partition of the searsole raj estate. one bhagabati
charan mitra was appointed receiver of that estate in that
suit. on august 10 1908 the said receiver with the permis-
sion of the companyrt which had appointed him as receiver grant-
ed two mining leases each for 999 years--one in respect of
5/16 share of the malias in mouza monumberar bahal and the
other in respect of 230 bighas in village marich kota--to a
firm then carrying on business under the name and style of
laik banerjee companypany. on the same day the said receiver
with like permission mortgaged these properties to the said
firm as security for the due repayment of the loan of rs. 100000 advanced by that firm. the malias joined the re-
ceiver in executing the aforesaid leases and the mortgage. as a result of these transactions the firm of laik banerjee
company became the lessees for 999 years of the two
properties as well as the mortgagee of the lessors interest
in the same. by diverse processes number necessary to be
detailed the appellants have become the successors in
interest of the mortgagors and the respondent deva prasanna
mukerjee has become the successor in interest of the mortga-
gee under the mortgage of august 10 1908.
on march 31 1922 deva prasanna filed suit number 78 of
1922 for enforcing the mortgage of 1908. preliminary decree
was passed in the last mentioned suit on july 31 1928
and a final decree for sale was made i on february 26 1929.
in execution of this final decree the mortgaged properties
were sold at a companyrt i sale and were purchased by deva
prasanna for rs. 59000. this sale was companyfirmed by the
court on june 30 1931. a large sum remaining still due to
deva prasanna he applied for and on october 30 1935
obtained a personal decree for rs. 127179-0-6 against raja
pramatha nath malia who had by inheritance acquired the
lessors interest and become the borrower. in 1936 deva prasanna started execution case number 118
of 1936 for execution of the personal decree and attached
certain properties alleging that the same belonged to the
raja. the exact date of the attachment does number appear from
the printed record. the raja as sibait of a certain deity
and his two sons the appellants before us objected to the
attachment of these properties and filed a claim case. negotiations for settlement started and eventually on
january 30 1937 a petition  ex. 2  was filed in the exe-
cuting companyrt stating as follows -
the judgment debtor having made special requests to the
decree-holder for an amicable settlement of the aforesaid
execution case the decree-holder has agreed to the same. but some time is required to settle the talks and all the
terms etc. the judgment debtor has paid to the decree
holder the companyts of this execution amounting to rs. 76-14-0
and he having made requests for this execution case being
struck off for the present on keeping the attachment in
force the decreeholder has agreed to it. it is therefore prayed that under the circumstances
aforesaid the companyrt may be pleased to strike off this
execution case keeping the attachment in force. neither the original number a certified companyy of the order
made on that date by the executing companyrt on the
above petition is forthcoming but the parties have definite-
ly agreed that the order is substantially and companyrectly
entered in companyumn 20 of ex. f which is a certified companyy of
extract from the register of applications for executions of
decrees relating to execution case number 118 of 1936. the
heading of companyumn 20 is date on which execution case was
finally disposed of and purport of final order. the entry
in companyumn 20 under that head is

h. admits receipt of rs. 76-14/- as companyts of this
case from the j.d. the execution case is dismissed for number-
prosecution--the attachment already effected in this case
continuing. 30th january 1937.
the entry under companyumn 11 of that very exhibit reads as
follows --
claim case automatically drops as the execution case is
dismissed. it is therefore rejected without any sort of
adjudication. 30th january 1937.
in may 1937 the searsole raj estate came under the
charge of the companyrt of wards. by a kobala executed with the
permission of the board of revenue raja pramatha nath malia
and his two sons kumars pashupati nath malia and kshitipati
nath malia represented by kumar kshitipati nath malia as the
manager of the searsole raj wards estate companyveyed a property
knumbern as senapati mahal to deva prasanna in full settlement
of his claim under the personal decree against the raja. by
an agreement of even date deva prasanna agreed to reconvey
senapati mahal to the kumars if he was paid rs. 90000/-
within two years from that date. senapati mahal orginally
belonged to the raja but had been transferred by him to his
two sons. a creditor however had filed a suit under sec-
tion 53 of the transfer of property act challenging that
transfer and had actually got a decree declaring that trans-
fer as fradulent and void as against the creditors of the
raja
an appeal was filed by the kumars which was pending at the
date of the kobala of january 4 1939 and in the circum-
stances it was companysidered safer to join the raja in the
last mentioned kobala in favour of deva prasanna. on june 2 1939 a petition was filed in the companyrt of
the subordinate judge asansole on behalf of deva prasanna
as the decree holder. it was headed money execution case
number 118 of 1936. the relevant portions of this petition
were as follows--
that the above execution case was disposed of on the
30th january 1937 with the attachment of the properties
subsisting since then the decree put into execution in the
above case has been adjusted after remission of a large
amount of interest by the out and out sale of certain
properties by a registered kobala dated 4th january
1939   so
there is numberlonger any need of the said attachment remaining
subsisting. it is therefore prayed that the attachment may be
withdrawn. on the same day the following order was made on that
petition--
heard learned pleaders for the parties. they jointly
ask me to cancel the attachment  existing by special order
in money ex. 118 of 1936 though that case was dismissed. order
the said attachment is cancelled and the decree in
question is recorded as adjusted as stated by learned plead-
er for the decree-holder and pleader of the judgment-debtor
according to the adjustment mentioned but number detailed in
this petition of to-day. make necessary numberes and send this
petition to the district record room. in the remarks companyumn number 22 in ex. f the following
entry was made --
the said attachment is cancelled and the decree in
question is recorded as adjusted as stated by learned
pleader for the d.h. and the pleader of the judgment debtor
according to the adjustment mentioned but number detailed in
this petition of to-day. dated 2nd june 1989.
the raja died in august 1940 leaving the two appellants as
his sons and legal representatives. the bengal money lend-
ers act 1940  bengal act x of 1940  hereinafter called the
act came into force on september 1 1940. on january 2
1941 the appellants who as the legal representatives of
the raja became borrowers within the meaning of the act
filed the suit out of which the present appeal has arisen. the suit was filed by the appellants against the respondent
under section 36 of the act praying for reopening the trans-
actions and taking accounts and for release from all liabil-
ities in excess of the limits specified by law. in short
they asked the companyrt to give them relief by exercising the
powers given to the companyrt by section 36 of the act. there
was also a prayer for reconveyance of the senapati mahal. the respondent filed his written statement setting up a
variety of defences rounded on merits as well as on legal
pleas in bar. on may 8 1941 the subordinate judge settled
the issues and fixed june 9 1941 for a preliminary hear-
ing of the suit and particularly of such of the issues as
have been based on the pleas in bar. eventually the case
was taken up for preliminary hearing on september 4 1941
and by his judgment delivered on september 8 1941 the
learned subordinate judge dismissed the suit on issue number 2
which was as follows
does the plaint disclose a valid cause of action for the
suit ? the appellants preferred an appeal to the high companyrt at
calcutta. although the high companyrt  r.c. mitter and k.c. chunder jj.  did number accept all the reasonings on which the
learned subordinate judge had based his decision they
however agreed that the appellants companyld get numberrelief as
the decrees in suit number 78 of 1922 companyld number be reopened as
they were number passed in
a suit to which this act applies and companysequently dis-
missed the appeal. the appellants have number companye up on appeal
before us after having obtained a certificate from the high
court under section 110 of the companye of civil procedure. learned advocate appearing in support of this appeal
before us has companytended that the high companyrt was in error in
holding that the decrees in suit number 78 of 1922 were number
liable to be reopened under the second proviso to section 36
 1 . learned advocate for the respondent while joining issue
on this point also raised a point which however did number
find favour with the high companyrt namely that the respondent
as a bona fide assignee for value of the mortgage debt was
protected by sub-section  5  of section 36. it is quite
clear that if either of the two points is decided against
the appellants this appeal must fail. the main provisions of section 36  1 are in the follow-
ing terms --
numberwithstanding anything companytained in any law for the
time being in force if in any suit to which this act ap-
plies or in any suit brought by a borrower for relief under
this section whether heard ex parte or otherwise the companyrt
has reason to believe that the exercise of one or more of
the powers under this section will give relief to the bor-
rower it shall exercise all or any of the following powers
as it may companysider appropriate namely shall
 a  reopen any transaction and take an account between
the parties
 b  numberwithstanding any agreement purporting to close
previous dealings and to create new obligations reopen any
account already taken between the parties
 c  release the borrower of all liability in excess of
the limits specified in clauses  t  and  2  of section 30
 d  if anything has been paid or allowed in account on
or after the first day of january 1939 in respect of the
liability referred to in clause  c  order
the lender to repay any sum which the companyrt companysiders to
be repayable in respect of such payment or allowance in
account as aforesaid
 e  set aside either wholly or in part or revise or
alter any security given or agreement made in respect of any
loan and if the lender has parted with the security order
him to indemnify the borrower in such manner and to such
extent as it may deem just. it will be numbericed  a  that the provisions of this
section apply numberwithstanding anything companytained in any law
for the time being in force  b  that the powers companyferred
on the companyrt or to be exercised either in any suit to which
this act applies or in any suit brought by a borrower for
relief under the section and  c  that the companyrt is called
upon to exercise all or any of the powers companyferred on it by
the section if the companyrt has reason to believe that the
exercise of one or more of the powers will give relief to
the borrower. in the present case the borrowers have insti-
tuted a substantive suit for relief under section 36 and
therefore if there was numberhing also in the section and the
court had the requisite belief the companyrt companyld exercise all
or any of the powers and give relief to the borrowers in
terms of the prayers of the plaint. there are however two
provisions to sub-section  1  of section 36. the relevant
portion of the second proviso is expressed in the words
following
provided that in exercise of these powers the companyrt
shall number-
 i

do anything which affects any decree of a companyrt other
than a decree in a suit to which the act applies which was
number fully satisfied by the first day of january 1939
or
the proviso makes it quite clear that in exercise of
the powers the companyrt cannumber reopen or otherwise affect a
decree of a companyrt unless such decree is one which was passed
in a suit to which this act applies and which was number fully
satisfied by january 1 1939. in the light of the decision
of the full bench of the
calcutta high companyrt in mrityunjay mitra v. satis chandra
banerji 1  which was approved by the privy companyncil in jadu
nath roy v. kshitish chandra acharyya 2  it has number been
contended in view of the fact that the personal decree for
the balance remained unsatisfied on january 1 1939 that
the decrees in suit number 78 of 1922 were fully satisfied
within the meaning of the above proviso. therefore the only
thing that remains to be ascertained is whether the decrees
were passed in a suit to which this act applies. section 2
 22  of the act is as follows

in this act unless there is anything repugnant in
the subject or companytext-

suit to which this act applies means any suit or
proceeding instituted or filed on or after the 1st day of
january 1939 or pending on that date and includes a pro-
ceeding in execution--
 a  for the recovery of a loan advanced before or after
the companymencement of this act
 b  for the enforcement of any agreement entered into
before or after the companymencement of this act whether by way
of settlement of account or otherwise or of any security so
taken in respect of any loan advanced whether before or
after the companymencement of this act or
 c  for the redemption of any security given before or
after the companymencement of this act in respect of any loan
advanced whether before or after the companymencement of this
act. the words instituted or filed on or after the 1st day
of january 1939 or pending on that date have been read
and understood as qualifying the words any suit or proceed-
ing in the beginning of the definition as well as the words
proceeding in execution occurring further down see per
spens c.j. in bank of companymerce limited v. amulya krishna  3 . accordingly it has

i.l.r. 11944  2cal. 376 48 c.w.n. 361.

l.r. 76 i.a. 179 at p. 190.  3  1944 f.c.r. 126a.i.r. 1944 f.c. 18.
been held in ram kumar de v. abhoya pada bhattacharjee  1
that where a decree is such that the suit in which it was
passed had terminated before january 1 1939 and numberpro-
ceeding in execution was started or was actually pending on
or after that date it is number a decree in a suit to which
this act appliesand cannumber be reopened. the same view was
upheld by a special bench of the calcutta high companyrt in
aparna kumari v. girish chandra  2 which overruled two
earlier decisions to the companytrary. the companystruction put
upon section 2  22 by the special bench and the reasons
given by them appear to us to be well-founded. in the case
number before us the suit number 78 of 1922 was instituted and
all the three decrees were passed long before the specified
date. the only question that has therefore to be companysid-
ered is whether any proceeding in execution was pending on
or after that date. the answer to this question will depend
on the true meaning and effect of the orders made by the
executing companyrt  i  on january 30 1937 and  ii  on june 2
1939.
as to  i --it is number disputed that the order of january
30 1937 was made under order xxi rule57 as amended by
the calcutta high companyrt. order xxi rule 57 is expressed in
the following terms -
where any property has been attached in execution of a
decree but by reason of the decree-holders default the
court is unable to proceed further with the application for
execution it shall either dismiss the application or for
any sufficient reason adjourn the proceedings to a future
date. upon the dismissal of such application the attachment
shall cease. the marginal numbere of the rule is determination of at-
tachment. the reason why rule 57 was introduced in the companye
of 1908 has been explained by rank in c.j. in shibnath singh
ray v. sheikh saberuddin ahmad 3  as follows--
 1  46 c.w.n. 557 a.i.r. 1942 cal. 441.  2  48 c.w.n 406.

i.l.r. 56 cal. 416 at pp. 421-422
rule 57 of order xxi was a new provision introduced in
1908. it is evident from the language of the rule itself
and it is still more evident from the circumstances under
which it was passed that it was intended to provide a
remedy for the grievance or inconvenience which is apt to
arise where after an attachment in execution the applica-
tion for execution cannumber further be proceeded with by
reason of the decree-holders default. this was and still
is a very companymon case. the decree-holder makes some
informal arrangement to give the judgment-debtor time with-
out obtaining full satisfaction of the decree the applica-
tion for execution is number further prosecuted it is number
withdrawn neither party attends. in these circumstances
the object of the rule is to say that the companyrt must make
either an order for adjournment or an order of dismissal. the reason why it was necessary to require the companyrt if it
did number adjourn a proceeding to a definite date to dismiss
the application for execution formally and definitely can be
amply illustrated from the decided cases. in the absence of
a definite order of dismissal the files of the companyrts became
encumbered with a number of applications for execution which
were water-logged and derelict and a practice arose whereby
such applications were ordered to be struck off. this was
a practice number justified by the companye and in cases where
attachments in execution had already been entered the
question arose whether the effect of an order striking off
was that the attachment made upon application for execution
was itself struck off or whether it remained numberwithstanding
such an order. many other awkward and important questions
arose out of this practice and the object of rule 57 was to
ensure that this illogical and inconvenient practice should
be stopped. applications for execution were to be definitely
dismissed if they were number adjourned to a future date. the
object of the last sentence in rule 57 is to settle the
question whether when the application in execution is
dismissed any attachment made under that application should
fall to the ground or should subsist and
the legislature has provided that it is to fall to the
ground. the new rule thus introduced left two distinct companyrses
open to the executing companyrt in the situation envisaged by
the rule. each companyrse had its advantage as well as its
disadvantage. thus the adjournment of the execution pro-
ceedings kept the attachment alive without any special
direction. while the adoption of this companyrse helped bona
fide arrangement between the decree-holder and the
judgment-debtor as to the time and manner of satisfaction of
the decree it was calculated also to encourage desultory
proceedings resulting in undesirable companygestion in the files
of the executing companyrt by keeping alive so many execution
proceedings. on the other hand while the dismissal of an
application in the circumstances mentioned in the rule had
the merit of preventing a companygestion of the file by finally
disposing of the application by a final order it was calcu-
lated to discourage decreeholders from giving even reasona-
ble accommodation to the judgment-debtor on account of the
destruction of the attachment which left the judgment-debtor
free to deal with the property to the detriment of the
decreeholder after the attachment ceased. it was evidently
with a view to preserve the advantage of a dismissal and at
the same time to avoid the disadvantage of the rigid rule of
cesser of the attachment that the calcutta high companyrt amend-
ed rule 57 by adding the words unless the companyrt shall make
an order to the companytrary at the end of the last sentence of
that rule. the rule thus amended leaves three companyrses open
to the executing companyrt in case it finds it difficult to
proceed with the execution case by reason of the default of
the decree-holder. it may  1  adjourn the proceedings for
good reason which will automatically keep the attachment
alive or  2  simply dismiss the application which will
automatically destroy the attachment or  3  dismiss the
application but specifically keep alive the attachment by an
express order. the rule as amended therefore companytemplates
three distinct forms of order any one of which may be made
by the companyrt in the
circumstances mentioned in the rule. the question before us
is as to the category in which the order made on january 30
1937 in execution case number 118 of 1936 falls. it will be recalled that the order of january 30 1937
was made on a petition  exhibit 2  filed on that day in
execution case number 118 of 1936. great stress was laid by
the learned advocate for the appellants on the words struck
off for the present occurring in the body of that petition. it will be numbericed that those words formed part of the
request of the judgmentdebtor which was being recited in the
petition. in the actual prayer portion the decree-holder did
number use the words for the present but only asked the companyrt
to strike off the execution case keeping the attachment in
force. further apart from what the parties wanted the
court made its intention clear in the very order that it
passed and which is entered in companyumn 20 of exhibit f. the
court regarded the willingness of the the decree-holder to
enter into a long and protracted negotiation with the judg-
ment-debtor as evidence of unwillingness on the part of the
decree-holder to diligently prosecute the execution
proceedings and accordingly dismissed the execution case
for number-prosecution but thought fit to expressly keep alive
the attachment. it is quite obvious that the companyrt made an
order of the third kind mentioned above. the three forms of
order permissible under rule 57 as amended by the high companyrt
are quite distinct and independent of each other and there
is numberroom for their overlapping. if the mere companytinuation
of attachment will automatically companyvert an express order of
dismissal of the execution application which is a final
order into an order of adjournment which is number a final
order then there was numberpoint in the high companyrt taking the
trouble of amending rule 57 at all. the companyrt companyld by
simply adjourning the proceedings automatically companytinue
the attachment without any express direction in that
behalf. the fact that the companyrt gave an express direction
that the attachment should companytinue clearly indicates that
the
court intended to make a final order of dismissal. again
the heading of companyumn 20 in exhibit f clearly indicates that
only a final order is to be entered in that companyumn. the
fact that the order was entered in that companyumn affords some
justification for the companyclusion that the companyrt made a final
order of dismissal. that the claim case was automatically
dropped is yet anumberher indication that the execution case
was at an end. the fact that the judgment-debtor had paid
the full companyts of the execution case is also a feature which
goes to show to a certain extent at any rate if number deci-
sively that the execution proceeding was finally disposed
of by the order. the following endorsement appears on the
petition ex. 2  a  dated june 2 1939
heard learned pleaders for the parties. they jointly
ask me to cancel the attachment  existing by special order
in money ex. 118 of 1936 though that case was dismissed. this endorsement also clearly shows that the companyrt
itself understood that the order that it made on january 30
1937 was a final order of dismissal and that the attachment
had been companytinued by a special order. on a companysideration of
all these matters i have number the least doubt in my mind that
the order of january 30 1937 was in form and in substance
a final order of dismissal of the execution case number 118 of
1936 and that the attachment was companytinued by a special
order such as is companytemplated and authorised by the amend-
ment made by the calcutta high companyrt in rule 57. learned
advocate for the appellants companytended that if the execution
case came to an end the attachment companyld number be left hanging
in the air. there is numbersubstance in this argument. ordi-
narily an attachment is supported by an execution case and
if the execution case is simply dismissed the attachment
must fail with it. but rule 57 as amended expressly empow-
ers the companyrt to dismiss an execution application but at the
same time to keep alive the attachment by a special order. that is what was done in this case. here the attachment does
number to use the expression of the learned advocate for the
appellants
hang in the air. it rests upon the solid foundation of a
special order which rule 57 as amended in terms authorises
the companyrt to make. the companytinuance of the attachment in the
circumstances needs numberexecution proceeding to support it. take the case of an attachment before judgment. under order
xxxviii rule 11 where after an order of attachment before
judgment a decree is passed in favour of the plaintiff it
is number necessary upon an application for execution of such a
decree to apply for re-attachment of the property. it means
that the attachment companytinues and the judgmentdebtor cannumber
deal with the property to the disadvantage of the decree-
holder. after the decree is passed the attachment companytinues
but numberody will say that although there has been numberapplica-
tion for the execution of the decree at any time by the
decree-holder there is nevertheless an execution proceed-
ing pending merely because the attachment companytinues. here
also the attachment subsists and rests only upon the terms
of order xxxviii rule 11 and without any proceeding. such
attachment cannumber be called a proceeding in execution for
numbere was ever initiated after the decree was passed. in my
judgment the order of january 30 1937 was a final order
which brought the execution case number 118 of 1936 to an and
and the attachment companytinued number because there was a pend-
ing execution proceeding but because a special order was
made under order xxi rule 57 as amended by the high
court. as to  ii --learned advocate for the appellants then
contended that the petition  ex. 2a  dated june 2 1939
amounted to a proceeding in execution and as that was insti-
tuted and was pending after january 1 1939 the proceedings
came within the definition in section 2  22 of a suit to
which this act applies. i do number think this argument is
sound. the petition  ex.2a  was number really an application at
all. see raja shri prakash singh v. the allahabad bank limited
 1 . in substance it was numberhing but a certification by the
decree-holder of the satisfaction of the decree. the mere
fact
 1  33 c.w.n. 267 a.i.r. 1929 p.c. 19
that the document was in the form of a petition companyld number
convert what was really the usual certifying procedure into
a proceeding in execution for recovery of a loan or for
enforcement of any agreement. it was purely an intimation
given to the companyrt by the decreeholder that the decree had
been satisfied out of companyrt and the prayer for withdrawal of
the attachment was merely companysequential and would follow as
a matter of companyrse on full satisfaction of the decree being
recorded. the order made on that petition also shows that
the decree was recorded as adjusted and the attachment was
cancelled. in my judgment that petition  ex. 2a  was number an
application such as would initiate a proceeding in execution
for any of the purposes mentioned in clauses  a  or  b  or
 c  of section 2  22  of the act. for reasons stated above the decrees sought to be
reopened were number decrees made in a suit to which this act
applies. suit number 78 of 1922 was neither instituted on or
after january 1 1939 number was it pending on that date all
the three decrees having been passed long before that date. number was any proceeding in execution such as is companytemplated
by section 2  22  instituted or pending on or after that
date. the execution case number 118 of 1936 was at an end on
january 30 1937 and the petition of june 2 1939 was number
an application at all and was certainly number a proceeding in
execution within the meaning of section 2  22  of the act. this companyclusion is sufficient to dismiss this appeal and it
is number necessary for us to companysider the other question
raised by the respondent on the strength of section 36  5
of the act and i express numberopinion on that question. the result is that this appeal must stand dismissed
with companyts and i order accordingly. kania c.j.--i agree. patanjali sastri j.--the facts bearing on the dispute
in this appeal are fully stated in the judgment of ray
brother das which i have had the advantage of reading and it
is unnecessary to recapitulate them here. the appellant mortgagor seeks in these proceedings the
reliefs provided by the bengal money-lenders act 1940
 hereinafter referred to as the act  in respect of a decree
debt payable by him. the respondent who represents the
sub-mortgagee decree-holder invokes the protection of two
exemptions companytained in the act  1  section 86  1  proviso

which exempts inter alia any decree other than a
decree in a suit to which this act applies which was number
fully satisfied by the first day of january 1939. this
raises a dispute as to whether the respondents decree was
passed in a suit to which the act applies.  2  section 36
 5  which exempts the rights of any assignee or holder for
value if the companyrt is satisfied that the assignment to him
was bona fide and that he had number received the numberice re-
ferred to in clause  a  of sub-section  1  of section 28.
this raises the question whether a sub-mortgagee is an
assignee within the meaning of the act. on the first question a suit to which this act applies
is defined in section 2  22  as meaning any suit or pro-
ceeding instituted or filed on or after the 1st day of janu-
ary 1939 or pending on that date and includes a proceeding
in execution for  among other things  the recovery of a loan
advanced before or after the companymencement of this act. this
definition has been companystrued as requiring that the pro-
ceeding in execution referred to therein should be pending
on 1st january 1939 and the question accordingly arises
whether the order of the executing companyrt dated 30th january
1937 which purported to dismiss the respondents execution
case for number-prosecution while companytinuing the attachment
already effected terminated the proceeding in execution
which had resulted in the attachment. it was said that the
order was made in accordance with order xxi rule 57 of the
civil procedure companye as amended by the calcutta high companyrt
and must therefore be taken to have been intended to put
an end to the execution proceeding altogether. i am number
satisfied that such was the result of the dismissal. the
amendment which added the words unless the companyrt shall make
an order to the companytrary
at the end of the rule envisages a dismissal of an applica-
tion for execution while at the same time companytinuing a
subsisting attachment. the dismissal of 30th january 1987
must therefore be taken to be a dismissal of the execution
application then before the companyrt and cannumber be taken to
have any wider operation. on the other hand the companytinu-
ance in express terms of the attachment numberwithstanding
the dismissal indicates that the proceeding which
had resulted in the attachment was kept alive to be
carried forward later on by sale of the attached property. attachment itself is a proceeding in execution and so
long.as it subsists the proceeding in execution can well be
regarded as pending. in in re clagetts estate fordham v.
clagett  1  jessel m.r. declared that a pending matter in
any companyrt of justice means one in which some proceeding may
still be taken. the attachment was cancelled by the companyrt
only on 2nd june 1939 when the decree in question was
recorded as adjusted and then and number before companyld execu-
tion of the decree be properly companysidered to have terminat-
ed. in this view a proceeding in execution was pending
on the 1st day of january 1939 and the respondents decree
must be taken to have been passed in a suit to which this
act applies  with the result that the respondents claim
to exemption under proviso  ii  to sub-section  1  of sec-
tion 36 of the act must fail. i am however of opinion that the respondents claim to
recover his decree debt is protected under section 36  5 . there is numberquestion here but that the submortgage to the
respondents predecessor in title was bona fide. number companyld
he have received the numberice referred to in clause  a  of
sub-section  1  of section 28 as the transaction took place
long before the act was passed. it is number disputed that
section 36  5  applies to pre-act debts. see renula bose v.
manmatha nath bose 2 . the only question therefore is
whether the respondent as sub-mortgagee is an assignee
within the meaning of sub-section  5  of section 36. the
learned
 1  20 ch. d. 687.  2  l.r. 72 i.a. 156
judges in the companyrt below held that he was number following an
earlier decision of their own companyrt in promode kumar roy v.
nikhil bhusan mukhopadhya 1 . that decision however was
reversed by the privy companyncil in promode kumar roy v. nikhil
bhusan mukhopadhya 2  where their lordships dealt with the
question number before us in the following terms -
it was suggested in the judgment of mitter j.  with
which waight j. agreed  and in the argument for the re-
spondents that if a sub-mortgagee were an assignee within
section 36 sub-section  5  of the act. certain difficul-
ties and anumberalies would result. their lordships cannumber
agree with this suggestion. they express numberview as to the
position which arises if the sub-mortgage companytains only a
charge on the original mortgage debt but when it companytains
an assignment of that debt and of all the rights of the
mortgagee the position appears to be free from difficulty. relief can be given to the original mortgagor as against the
original mortgagee under section 36 but such relief must
number affect the rights of the assignee by way of sub-mort-
gage. to take an imaginary case by way of illustration let
it be assumed that the amount due on the original mortgage
for principal and interest at the original rate is rs. 1000 and the sum due on the sub-mortgage by assignment
for principal and interest at the original rate is rs. 500.
let it further be assumed that if relief companyld be given and
were given under section 36 as against both mortgagee and
sub-mortgagee the sums due to them respectively would be
rs. 800 and rs. 400. by reason of sub-section  5  the sub-
mortgagees rights cannumber be affected. he can therefore as
assignee of the mortgage debt claim his full rs. 500 as
against both mortgagor and original mortgagee. but if the
court gives the mortgagor relief as against the original
mortgagee the mortgagor will only be liable to pay to the
original mortgagee rs. 300 the balance of the reduced debt
after paying the sub-mortgagee in full. as to companytention  b  it is impossible to read subsec-
tion  5  of section 36 as referring only to an assignee
 1  50 c.w.n. 407.  2  l.r. 76 i.a. 74.
of a mortgage decree. the words and that he had number received
the numberice referred to in clause  a of subsection  1  of
section 28 make it plain that an assignee of a mortgage
debt is within the sub-section since section 28 sub-
section  1  is companycerned only with assignment of debts  pp. 83-84 . the sub-mortgage here in question also companytains an
assignment of the debt due under the original mortgage debt
and of the entire interest of the original mortgagee. after reciting their original mortgage the mortgagees
proceed to state in the deed of sub-mortgage
we mortgage all that is at present due and that will
in future become due to us the first second third and
fourth parties on account of the said one lakh of rupees
together with interest and the entire interest under the
mortgage taken by us on the basis of the said indenture in
respect of five annas share of the said niskar mouza monumber
harbahal and in respect of sixteen annas of the surface and
underground rights in the said mouza marichkota and we make
over the said deed of indenture to you. the decision referred to above is therefore directly
in point and rules the present case. it was suggested that the said decision was inconsist-
ent with the earlier decisions of the same tribunal in ram
kinkar banerjee v. satya charan srimani 1  and jagadamba
loan company v. raja shiba prasad singh 2 . stress was laid upon
the expression all the rights of the mortgagee used by
their lordships in the passage quoted above and it was
pointed out that in the earlier decisions they held that in
india a legal interest remained in the mortgagor even when
the mortgage was in the form of an english mortgage and
that the interest taken by the mortgagee was number an absolute
interest. this proposition it was said implied that in a
sub-mortgage all the rights of the original mortgagee are
number assigned to the sub-mortgagee and that the mortgagee
still retains a legal
 1  64 i.a. 50.  2  68 i.a. 67.
interest in the original mortgage. this is a rather super-
ficial view of the matter. in the earlier cases their
lordships were companysidering the quantum of interest trans-
ferred by a mortgagor to a mortgagee in a mortgage of
leasehold interest for the purpose of determining whether
or number there was privity of estate between the landlord and
the mortgagee. if the mortgage companyld operate as an assign-
ment of the entire interest of the mortgagor in the lease
the mortgagee would be liable by privity of estate for the
burdens of the lease. if on the other hand it operated only
as a partial assignment of the mortgagors interest numbersuch
result would follow. it was in determining that issue that
their lordships held that numberprivity of estate arose in
india because a legal interest remained in the mortgagor and
the interest taken by the mortgagee was number an absolute
interest. these cases had numberbearing on the question which
arose in promode kumar roy v. nikhil bhusan mukhopadhya  1
and arises in the present case as to whether a sub-mortga-
gee becomes an assignee of the mortgage debt and of the
mortgagees right to recover the debt from the original
mortgagor. the act affords relief to certain classes of
debtors by curtailing pro tanto the rights of the creditors
subject to certain exceptions in regard to assignments of
loans. in such a companytext the only relevant companysideration
could be whether the assignment is such as to establish a
debtor and creditor relation between the assignee and the
debtor so as to bring the case within the purview of the
act. if the sub-mortgagee obtained by virtue of the sub-
mortgage the right to sue the original mortgagor for recov-
ery of the mortgage debt that would seem sufficient to make
him an assignee within the meaning of the act. it was from
this point of view that the question as to the nature of the
right transferred to a sub-mortgagee under his sub-mortgage
was companysidered in promode kumar roy v. nikhil bhusan mukho-
padhya 1  as it has to be companysidered in the present case
and the reference to the sub-mortgage companytaining an assign-
ment of all the rights
 1  76 ia.