NABAKUMAR SINGH DHUDHURIA Vs. MAHARAJA JOGINDRA NATH ROY

JUDGEMENT

(1.) This is an application by the judgment-debtor for relief under the Bengal Moneylenders Act. On 13 July 1928, the petitioner borrowed a sum of Rs. 30,000 from the respondents. Interest on the loan was 15 per cent. per annum with yearly rests. On 28 July 1928, he borrowed another sum of Rs. 20,000 from the same respondents at the same rate of interest. Thereafter the amounts due on these two loans were consolidated and a hatchitta was executed for Rs. 57,375 on 24 June 1930. Interest on the hatchitta was 15 per cent. per annum. From time to time, the hatchitta was renewed for progressively larger sums which represented the principal and accrued interest. On 2 January, 1935, the respondents instituted a suit for the recovery of Rs. 1,05,530-8-0 against the petitioner and on 16th August 1935 a consent decree was passed for the aforesaid sum, the decree bearing interest at 9 per cent. per annum. It was provided that the decretal amount would be paid in instalments and certain properties outside the jurisdiction of this Court were charged for the payment of the decretal amount. The petitioner points out that under the aforesaid decree the petitioner was made liable to pay more than twice the amount of the principal advanced and he claims to be relieved from the payment of any sum in excess of twice the principal of the original loan.

(2.) The respondents object that this application is not maintainable in as much as the suit in which this application has been made is not a suit to which this Act applies. The phrase "suit to which this Act applies" has been defined in Section 2 Sub-section (22), Bengal Money- lenders Act, as "any suit or proceeding instituted or filed on or after the 1 day of January 1939, or pending on that date and includes a proceeding in execution." In my opinion the suit in which this decree has been passed is not a suit to which the Bengal Money-lenders Act applies, because it is not a suit which was filed on or after the 1 day of January 1939 or which was pending on that date and because there are at present no proceedings in execution of the decree passed in the suit. Mr. S.N. Banerjee on behalf of the petitioner argued that so Jong as the decree remains unsatisfied the suit must be considered as pending, and he referred me to the case in Suresh Charidra Mukheriee V/s. Lal Mohan Chatterjee , where Edgley J., held that a mortgage suit in which a final decree has been passed must be considered to be a pending suit until the final decree has been fully satisfied. With great respect to the learned Judge I am unable to accept this view. In any case the present suit is not a mortgage suit. It is a suit for the recovery of money and in my opinion when a decree has been passed in such a suit and the decree is not appealed from the suit is finally disposed of and it can no longer be said to be pending even though the decree be not satisfied. This suit is therefore not a suit to which the Bengal Money-lenders Act applies. Now the relief prayed for can be granted to the petitioner only under Section 36, Bengal Money-lenders Act. That section says that relief can be granted in any suit to which the Act applies or in any suit brought by a borrower for relief under the section. I have already held that this is not a suit to which the Act applies. That being so, the petitioner can get relief only by way of a suit. In the present case there is no such suit, there is merely an application.

(3.) Mr. Banerjee on behalf of the petitioner suggests that this application should be treated not as one under the Bengal Money-lenders Act but as an application under Section 47, Civil P.C., and he says that once the application is treated as such there is no difficulty in the way of the Court dealing with the application as a suit. It is quite true that under Section 47, Civil P.C., the Court may, subject to any objection as to limitation or jurisdiction, treat a proceeding under Section 47 as a suit. But I am unable to appreciate how this application can be held to be one under Section 47, Civil P.C. That section deals with questions relating to the execution, discharge or satisfaction of a decree. The present application is not one which relates to these matters, it is an application for the re-opening of a decree which has been passed and for the passing of a new decree giving the petitioner such relief under the Bengal Money-lenders Act as he is entitled to get. It has in my opinion nothing to do with an application under Section 47, Civil P.C., and therefore the provisions of that section cannot be called in aid for the purpose of converting this proceeding into a suit. I hold that the application is not maintainable and that it must accordingly be dismissed with costs. Learned Counsel on behalf of the respondents contended that apart from the defect of procedure the application should also be dismissed on the merits. I express no opinion regarding the merits of the application. The petitioner also filed a memorandum of review for greater safety. The application for review is dismissed on the same ground that such an application can only be entertained in a suit to which the Act applies. There will be no separate costs awarded for that application.