MOHINI RANJAN BHATTACHARJYA Vs. SURENDRA CHANDRA GHOSAL

JUDGEMENT

(1.) THIS rule arises out of an application under Section 36, Bengal Moneylenders Act. It was dismissed by the learned Munsif of Chittagong. The application was thrown out on two grounds. In the first place, it was stated that the Bengal Moneylenders Act in so far as it dealt with loans on promissory notes was ultra vires. But in this case there was a decree on the promissory note, and we are concerned with the question of recovery of the amount due under the decree in execution thereof. On the authority of a Special Bench of this Court in Harsukdas Balkissendas V/s. Dhirendra Nath Roy by which we are bound, it is not possible, therefore, to support the view taken by the learned Munsif. The second ground on which the learned Munsif holds that the application is incompetent is that it does not come within the terms of Clause (a) of Sub-section (6) of Section 36. Clause (a) requires that the decree must be passed in a "suit to which this Act applies." The learned Munsif holds on a reference to the definition of "suit to which the Act applies" as given in Clause (22) of Section 2, that these words in the setting in which they are used in Clause (a) cannot include an execution proceeding, inasmuch as there can be no question of a decree being passed in an execution proceeding. The decree here had been passed before 1 January 1939, but an execution proceeding was pending on that date. The learned Munsif, however, thought that this was not sufficient to make it a "suit to which this Act applies." Speaking for my -self, I must say that the point of view put forward by the learned Munsif cannot be summarily dismissed as untenable. All the same, having regard to the very wide terms of the definition and to the interpretation which has been given by this Court to that definition, I am afraid, we are not at liberty to give effect to the narrower meaning suggested by the learned Munsif. It has been held that where a decree has been passed before 1 January 1939, but an execution ease in connexion therewith is still pending on that date, that will be sufficient to bring the suit within the definition as given in Clause (22) of Section 2, and from the mere fact that Sub-section (6), Clause (a) refers specifically to a decree passed in a suit, we do not think it is possible to hold that the meaning of that expression in this clause must be restricted on that account. In our opinion the application must be held to be competent. The result, there. fore, is that the matter is sent back to the learned Munsif to be dealt with in accordance with the provisions of the Act. We make no order as to costs. B.K. Mukherjea J.

(2.) I agree.