Delhi High Court
Bageesh Dutt Mishra vs Saroj Devi on 10 November, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Ex.F.A. No. 21/2017
% 10th November, 2017
BAGEESH DUTT MISHRA ..... Appellant
Through: Mr. Shanker, Advocate.
versus
SAROJ DEVI ..... Respondent
Through: Mr. Subhash Chandra, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This execution first appeal is filed by the decree holder
impugning the order of the executing court dated 7.6.2017 by which
the executing court has allowed the objections filed by the present
respondent/objector and has dismissed the execution petition filed by
the appellant on the ground that the execution petition is barred as per
Section 3 of the Punjab Registration of Money Lenders Act, 1938
(hereinafter referred to as 'the Act').
2. It is an undisputed fact that the respondent was the
defendant in an Order XXXVII suit filed by the appellant/plaintiff.
This suit no. 42/2014 was decreed as the respondent/defendant failed
to file appearance in the Order XXXVII suit. Suit was therefore
decreed for Rs.3,37,000/- along with interest at the rate of 8% per
annum.
3. Admittedly, this decree dated 12.9.2014 has become final
as no challenge has been laid by the respondent/defendant to the order
dated 12.9.2014 decreeing the suit either by filing an application under
Order XXXVII Rule 4 CPC or by filing an appeal against the order
dated 12.9.2014 to a higher court. The only issue to be decided by this
Court is that whether taking the judgment/order dated 12.9.2014 as
final decreeing the suit for Rs.3,37,000/- along with interest at the rate
of 8% per annum, whether the execution petition filed by the
appellant/plaintiff/decree holder of the judgment/order dated
12.9.2014 is barred because of Section 3 of the Act.
4. I may also at this stage note that objections decided by
the impugned order dated 7.6.2017 are second set of objections filed
by the appellant and the earlier objections stood already dismissed by
the executing court on 8.1.2016.
5. The relevant paras of the impugned order/judgment
holding the execution petition as barred by Section 3 of the Act, are
paras 5 to 10, and these paras read as under:-
"5. Ld. Counsel for the DH at the outset argued that the first set of
objections have already been decided by this Court on 08.1.2016 and
therefore, these objections are not to be entertained. In the present
objections, the JD has raised only a legal objection that the present
execution is not maintainable under Section 3 of the Punjab Registration of
Money Lenders Act, 1938 and therefore, the objections are maintainable as
they do not touch the facts of the case.
6. Section 3 of the said Act provides that " Notwithstanding anything
contained in any other enactment for the time being in force, a suit by a
money-lender for the recovery of a loan; or an application by a money-
lender for the execution of a decree relating to a loan, shall after the
commencement of this Act, be dismissed, unless the Money-Lender
(a) at the time of institution of the suit or presentation of the
application for execution;
(b) .......;
(i) is registered; and
(ii) holds a valid licence, in such form and manner as may be
prescribed ; or.........."
7. Alongwith the objections, the JD has filed proceedings of three
different cases instituted by the DH against various persons, namely
Manohar Lal, Nobat Singh and Naveen Kumar, for recovery of loan and in
all the cases, he alleged that he had extended loans to the
defendant/respondent therein of various amounts, on various dates and the
present JD is another such person to whom the money was lent by the DH.
These proceedings have not been disputed by the DH who has preferred
not to file reply. These facts only go on to show that the DH is actively
involved in lending money to various persons.
8. Section 2(8) of the said Act defines „Money-Lender‟ as a person or
a firm carrying on the business of advancing loans as defined in this Act.
Section 2(7) of the said Act defines „Loan‟ as an advance whether
secured or unsecured of money or in kind and at interest and shall include
any transaction which the Court finds to be in substance a loan.
9. Although in the proceedings, copies of which have been placed on
record and referred to herein above, the DH has averred that he extended
friendly loans but his conduct shows that it was a loan within its definition
as mentioned herein above. It is, thus clear that the DH had been actively
working as a „Money Lender‟ without any registration under the Act
which was extended to the Union Territory of Delhi, as per Section 1(2) of
the Act. As already observed, even an execution of a decree relating to a
loan is also liable to be dismissed unless the Money-Lender was registered
under the Act as a Money-Lender at the time of institution of the suit or
presenting of the execution for application.
10. In view thereof, the objections to the present execution are
accepted and allowed and the present execution is dismissed.
File be consigned to Record Room."
6. Learned counsel for the respondent/objector argues that
objection as to the executability of the decree can be taken under
Section 47 CPC read with the relevant part of Section 3 of the Act
which specifically provides that there cannot be execution of a decree
relating to loan unless the money lender, who is the plaintiff, is
registered under the Act.
7. In my opinion, the objections filed by the
respondent/judgment debtor and which have been allowed in terms of
the impugned order/judgment dated 7.6.2017 are liable to be
dismissed and the impugned order/judgment dated 7.6.2017 is liable to
be set aside. Reasons are given hereinafter.
8.(i) The first reason for setting aside the impugned
order/judgment dated 7.6.2017 is that, admittedly, objections were
even earlier filed by the respondent herein but the same were
dismissed by the order of the executing court dated 8.1.2016. In law it
is not permissible to file objections in tranches because if such
procedure is allowed then possibly there will be a few dozen objection
petitions filed consecutively after dismissal of earlier petitions. So far
as the existence of a bar to filing of a second suit there is a provision
under Order II Rule 2 CPC, and in my opinion the spirit of the
provision of Order II Rule 2 CPC will apply to filing of second
objections after the first objections are dismissed, and accordingly it is
held that the present objections which were the second set of
objections filed by the respondent/objector were barred in law and
thus could not be allowed in terms of the impugned order/judgment.
(ii) I would also like to note that besides the provision of Order 2
Rule 2 CPC what will also apply is the provision of Explanation IV to
Section 11 CPC and which provides that any matter which might and
ought to have been made a ground of a defence or attack in a former
suit should be taken as directly and substantially in issue in such
earlier suit. Once again, it is the spirit of the provision of Explanation
IV to Section 11 CPC that will apply because even if the objection of
bar of Section 3 of the Act was not taken in the first set of objections
which have been dismissed then such/this objection is what the
respondent/objector might or ought to have been taken in the first
objection petition, but is not taken, thereafter taking of such
ground/objection is barred by constructive res judicata by applying
the spirit of the provision of Explanation IV to Section 11 CPC.
9. The next reason for setting aside of the impugned
judgment is that the executing court has wrongly relied upon Section 3
of the Act because no doubt this provision provides for objections to
be raised in execution of a decree, however, this part of Section 3 of
the Act was meant to cover suits which were decreed prior to passing
of the Act and not to suits which were instituted after passing of the
Act. With respect to suits filed after passing of the Act, this issue of
application of Section 3 of the Act is an aspect of merits which
has/had to be urged by way of a defence on merits to the suit. Once
that is not done then in execution proceedings this objection cannot be
taken because an executing court cannot go behind a decree. The
language of that part of Section 3 of the Act which talks of objections
being filed under Section 3 of the Act in execution proceedings, the
same is limited to those situations and circumstances where the suit
was decreed prior to passing of the Act and the execution petition was
filed after passing of the Act and therefore the defence under Section 3
of the Act was not available on merits in a suit which was decreed
prior to passing of the Act. In view of the above discussion it is clear
therefore that the said provision of Section 3 of the Act has been
wrongly applied by the executing court against the appellant/decree
holder.
10. In view of the above discussion, this appeal is allowed
and the impugned judgment/order of the executing court dated
7.6.2017 is set aside. The executing court will now proceed against
the judgment debtor/respondent in accordance with law.
11. Appellant can revive the execution petition now by filing
a certified copy of the present judgment in the execution proceedings.
NOVEMBER 10, 2017 VALMIKI J. MEHTA, J
AK
