CHANDRAWATI DEBI Vs. NANDKISHORE PRASAD

JUDGEMENT

(1.) This is an application in revision by certain defendants in a mortgage suit. The preliminary decree was passed in August 1936, and was confirmed on appeal in November 1937. When in May 1938, the mortgagee applied for a final decree, the petitioners in January 1939, raised objections under the Money-lenders Act. On 23 May 1939, these objections were overruled by the lower Court. The only point that has been urged before me is that the lower Court ought to have applied Section 7, Bihar Money-lenders (Regulation of Transactions) Act, 1939. This Section provides that: Notwithstanding anything to the contrary contained in any other law or in anything having the force of law or in any agreement, no Court shall, in any suit brought by a money-lender before or after the commencement of this Act in respect of a loan advanced before or after the commencement of this Act or in any appeal or proceedings in revision arising out of such suit, pass a decree for an amount of interest for the period preceding the institution of the suit which, together with any amount already realized as interest through the Court or otherwise, is greater than the amount of loan advanced, or, if the loan is based on a document, the amount of loan mentioned in or evidenced by such document. The contention of the learned advocate is that a mortgage loan is a loan within the meaning of the Act (see Section 2(f)), that a suit does not end with the decree passed by the trial Court, Section 2(k); and that under the explanation to Section 2(2), Civil P.C., a suit cannot be said to be completely disposed of when all that has happened is that a preliminary decree has been passed.

(2.) It must be conceded that the suit out of which this application in revision arises was a pending suit; but the prohibition against passing a decree for an amount of interest for the period preceding the institution of the suit which together with any amount already realized as interest is greater than the amount of loan advanced can only operate at the time appropriate for passing a decree for any interest at all. In mortgage suits the appropriate time is the preliminary decree. It is true that the suit will remain pending until a final decree is passed; but the final decree is entirely controlled by the preliminary decree and merely works out the arithemetical results of the preliminary decree minus any payments that may be made by the debtor subsequent to that decree. The passing of the final decree does not involve the determination of any amount of interest for the period preceding the institution of the suit at all, and the preliminary decree in the present case became binding on the parties when it was confirmed on appeal long before the passing of our first Money-lenders Act. The learned advocate has laid stress on the opening words of the Section Notwithstanding anything to the contrary contained in any other law or in anything having the force of law or in any agreement.

(3.) These words however have little to do with the law of procedure; and it seems to me perfectly clear that Section 7 has no application in a case like the present where the preliminary decree was passed in 1936 and confirmed on appeal in 1937 and it is only the final decree (which is controlled by that preliminary decree in respect of amount of the interest) that has now to be passed. The result is that this application must be dismissed with costs: Hearing fee one gold mohur.