PROBODH MOHAN GOSWAMI Vs. LALIT MOHAN DEY

JUDGEMENT

(1.) This rule arises out of an order by the Additional Subordinate Judge, 24 Perganas, refusing an application under Section 36, Bengal Money Lenders Act, for reopening a decree passed against the petitioner. The petitioner took a loan of Rs. 8000 from the opposite party on a mortgage bond dated 5 June 1931, interest being stipulated for at 9 per cent. per annum compound with half-yearly rests. An amount of Rs. 98 was paid on account of interest, and the opposite party instituted a suit on his bond on 7 September 1934 claiming Rs. 10,554-6-9. A preliminary decree was passed on 22 July, 1935 for the amount of the claim together with interest of Rs. 644-4-0 at the bond rate from the date of institution of the suit up to the date of the preliminary decree, and for Rs. 990-9-0 for costs of the suit totalling Rs. 12,189-3-9 in all. Interest was further allowed at the bond rate of 9 per cent. per annum up to the due date of payment and thereafter apparently at 6 per cent. though there appears to be some difference of opinion on the point. Final decree was passed on 8 January 1936; in the decree, actual calculation of the total due is not made, the materials for the calculation are set out.

(2.) The mortgagee took out execution in T. Ex. Case No. 58 of 1936 and realised Rs. 2190 by sale of some of the properties on 10 July 1937. He again took out execution on 3 June 1938 in T. Ex. Case No. 34 of 1988, claiming Rs. 10,572-9-8 together with interest at the bond rate between the date of the execution case and the date of sale, which was fixed for 18 July 1941 the total claim in the sale proclamation being Rs. 15,434-2-8. The learned Subordinate Judge has made a calculation of the amount due to the decree-holder at 8 per cent. simple interest on 3 June 1938, the date of the application of the decree-holder in T. Ex. case No. 34 of 1938. Making allowances for the payment of Rs. 98 the amount that would be due at the date of the final decree comes to Rs. 10,872-10-0, and then adding to this interest at 6 per cent. and making allowance for the realization of Rs. 2190 in T. Ex. case No. 58 of 1986, the amount due to the decree-holder on the date of his application in T. Ex. case No. 34 of 1988 would be approximately Rs. 11,700 which is less than the amount claimed by the decree-holder in that case, since he has made some deduction in the amount of interest claimed. The learned Judge therefore holds that as on the date of that application, namely, 3 June 1938, the amount claimed by the decree-holder is less than the amount that would be calculated due to him applying the statutory limit of 8 per cent. simple interest, no relief would be obtained by the judgment-debtor hence the latter is not entitled to have the decree re-opened.

(3.) We have noted that there seems to be some difference of opinion as to the interpretation to be given to the final decree in the suit, the decree-holder having apparently claimed interest at the bond rate on the decretal amount for some of the period, while the learned Judge has calculated at the rate of 6 per cent. We mention this to make it clear that we express no opinion on this question of interpretation, since in the view we take the point is immaterial for our present purposes. It is clear that the learned Judge is wrong in applying as a test of the relief to be obtained by the debtor what the decree-holder may choose to claim in execution of his decree. The proper test is to weigh the actual amount of the liability in respect of total interest under the decree as against what the amount would be if calculated at the appropriate rate specified in Section 30. In the present case it is undisputed that the amount as decreed in the final decree in respect of interest exceeds the amount that could be decreed if the limits applicable under Section 86(2) read with Section 30(1)(c) are applied in calculating the liability of the judgment-debtor. The decree in question is therefore to be re- opened under Section 36(1)(a) and Section 86(6) at the instance of the judgment-debtor. This rule is accordingly made absolute, the order of the trial Court is set aside, and the case will go back for it to pass orders in accordance with the law as directed above and as laid down in Section 36 of the Act. We make no order as to costs. B.K. Mukherjea, J.