SM MAHALAKSHMI RAKHIT Vs. SMSHAMRANGINI ROY CHOWDHURANI

JUDGEMENT

(1.) This is an appeal from the judgment of Sen J. dismissing an application made by the defendant mortgagor under the Bengal Money-lenders Act. The applicant asked for the mortgage transaction to be re-opened, and also asked that, in taking the account, the mortgagor should not be charged with compound interest, or charged with interest on the decretal amount, as provided by the final decree. The facts of the case are very simple. The appellant on 7 April 1937, took a loan from the respondent of Rs. 11,000, and executed a promissory note for that amount, the provision for interest being that it should be payable at the rate of 7 1/2 per cent. com-pound interest with quarterly rests. To secure the principal and interest the appellant deposited by way of equitable mortgage the title deeds of a property called No. 19, Mohan Began Lane. The suit to enforce the mortgage was instituted on I8th January 1939, the interest claimed amounting to Rs. 642 3-9. The suit was undefended, and on 3 March 1939, a preliminary decree was passed on 2 June, 1939, the registrar made his report wherein it was stated that on 17 January 1940, the mortgage debt and interest would amount to Rs. 11,769.13-3. On 15 April 1940, the final decree for sale was made, and it was provided in the decree that the decretal amount should carry interest at 6 per cent. until realization. Steps were taken to bring the property to sale, and while the sale was pending, the present notice of motion was served on 5 September 1940. Sen J. dismissed the application with costs on 12 September 1940. On 14 September 1940, the property was sold, but the sale has not been confirmed pending the disposal of this appeal.

(2.) Three points are taken by the appellant, any of which, she says, entitles her to ask the Court to have the transaction re-opened and, in terms of Section 36, Bengal Money-lenders Act, to claim some of the reliefs provided thereby. Her first complaint is that the Court has allowed interest at the rate of 6 per cent, on the decretal amount as found due by the Registrar. Her objection to this part of the decree is based upon Section 31 of the Act. The relevant portions of that section are as follows: Notwithstanding anything contained in any law for the time being in force, no Court shall, in any decree passed in any suit to which this Act applies-(a) if the loan to which the decree relates was advanced before the commencement of this Act, allow any interest on the decretal amount.

(3.) The suit with which we are concerned is admittedly one to which the Act is applicable, and the loan to which the decree relates was advanced before the commencement of the Act. In dealing with the applicant's contention the learned Judge observed as follows: "It is contended that s.31, Bengal Money-lenders Act, would entitle the petitioner to this relief." He then refers to a decision of his own on exactly the same point. That decision is Katan Chunder Gupta v. Nirmal Chunder Neogy ( 41) 45 CWN 13. The observations of the learned Judge in that case were as follows: Learned counsel for the petitioner draws my attention to Section 31 of the Act and he says that by reason of the provisions of that section the petitioner would be entitled to reopen the decree because the Court has granted interest on the decretal amount. Now, there is no section in the Bengal Moneylenders Act, so far as I am aware, which says, that if a decree is passed whereby interest on the decretal amount is granted before the Act came into force, the judgment-debtor would be entitled to have that decree set aside, or modified, by a disallowance of that portion of the decree by which interest is granted on the decretal amount.