ANATH NATH SARKAR Vs. RAJENDRA NATH BHATTACHARJEE

JUDGEMENT

(1.) This rule is directed against an order dated 23 November 1940 of the Subordinate Judge first Court, Howrah, made in an application under Section 36, Bengal Moneylenders Act. The Subordinate Judge came to the finding that the mortgage decree did allow the decree-holder interest in excess of what is permitted under Section 30, Bengal Moneylenders Act. By the order mentioned aforesaid he reduced the decretal dues by a sum of Rs. 127 which, according to him, was the excess amount allowed in contravention of Section 30, Bengal Money-lenders Act, and he has made proportionate alteration in the order for costs also. He has, however, refused to pass a new decree and has rejected the prayer for the instalments on the ground that such prayer could be made only before the decree was passed.

(2.) In our opinion, the view taken by the Court below is not right. The Court can reopen a decree under Section 36 only if it is necessary to do so for the purpose of exercising any of the powers which are conferred by Sub-section (1) of Section 36. A claim for instalments is not one of the reliefs which comes under the purview of that Sub-section and cannot by itself afford a ground for re-opening a decree. In the present case the Court has found that the judgment-debtor is entitled to relief under Sub-clause (e) of Sub-section (1) of Section 36, as he was made liable for interest exceeding the limits prescribed by Section 30 of the Act. As the decree has already been passed by which the excess interest was given, the Court has got to re-open the decree for the purpose of exercising its powers under Sub-clause (c), Sub-section (1) of Section 36. The Court below, therefore, was not justified in saying that the decree should not be re-opened in this case. The reduction of the decretal dues as well as revision of the order for costs did, in our opinion, amount to a re-opening of the decree. As the Court in reality has re-opened the decree, it is bound to make a new decree as contemplated by Section 36, Clause (2), Bengal Money-lenders Act. As it is a mortgage suit, the new decree has got to be made in accordance with Section 34 of the Act and the judgment-debtor is entitled to such instalments as the Court thinks proper.

(3.) In our opinion it will be quite proper in the circumstances of the case if the judgment- debtor is allowed to pay the decretal dues in four equal annual instalments. Pendente lite interest at the rate of six per cent. per annum should be allowed from the date of the institution of the suit till the date of the new decree. No post decree interest will be allowed. We accordingly set aside the order of the Subordinate Judge and send the case back in order that a new decree might be made in accordance with the directions made above. The petitioner undertakes to withdraw the appeal which he has filed against the same order in the Court of the District Judge of Howrah.. There will be no-order as to costs in this rule.