Abdur Rahim alias Manghu Mia vs Abdur Rauf and Others

Henderson, J.—This rule is directed against an order of the Munsif rejecting an application made by the petitioner in a certain proceeding taken in execution of a mortgage decree. The petitioner is a purchaser of a part of the equity of redemption. The Munsif started by saying that the application was one to re-open the decree. He held that a purchaser of a part of an equity of redemption is not a successor-in-interest of a mortgagor. This point has been dealt with in the judgment of a Division Bench of this Court in Sailendra Nath Bhattacherjee Vs. Amarendra Nath Mukherjee and Others, . The petitioner treating the matter as one u/s 47, Civil P.C., filed an appeal. It was dismissed as incompetent and the learned Judge followed the decision of this Court in Promode Nath Sinha Roy and Others Vs. Sm. Raseshwari Dassi and Another, . The decision of the lower Court was correct on the footing that the petitioner was attempting to re-open the decree by a review application u/s 36, Bengal Money-lenders Act.

The record is now before us and it has become apparent that the petitioner never asked that the decree might be reopened. He filed an application u/s 47, Civil P.C., to the effect that in view of the provisions of the Bengal Money-lenders Act it should be held that the decretal amount has been paid off, and the execution case be accordingly dismissed on full satisfaction. Now, it is not for me to say whether that claim is well-founded. It is for the learned Judge to decide when he hears the appeal both on questions of fact and on questions of law. The order of the District Judge is accordingly set aside and he is directed to hear the appeal on merits. As this order is by consent, costs in the rule will be costs in the appeal--hearing fee, one gold mohur.