BASUDEB MAHAPATRA Vs. SURENDRA NATH MITRA

JUDGEMENT

(1.) The only point to be decided in this miscellaneous appeal is whether Section 10, Orissa Money-Lenders Act (Act 3 of 1939) would apply to d the execution proceeding on account of the provisions of Section 16 of the Act.

(2.) For the decision of this point it is not necessary to refer to the facts of the case, but they may be very briefly stated. The respondent obtained a preliminary mortgage decree against the appellants on 5 August 1936. The decree was made final on 3 February 1937, and in execution of that decree all the mortgaged properties were sold, but a portion of the decree still remained unsatisfied. Subsequently the respondent obtained a decree under Order 34, Rule 6, Civil P.C., for such portion of the decretal amount as had remained unsatisfied, and the present question has arisen in the course of the execution of this decree. It was urged in the Court below on behalf of the judgment-debtors that Section 10, Money-lenders Act, applies to an execution proceeding also, and the Court was asked to give relief to the appellants in regard to interest by applying that section. The Court below refused to do so, holding that Section 10 did not apply to execution proceedings; and the judgment-debtors have appealed to this Court. Section 10 provides that: (1) Notwithstanding anything to the contrary contained in any other law or in anything having the force of law or in any contract, no Court shall, in any suit brought by a money-lender in respect of a loan, advanced before or after the commencement of this Act, pass a decree for an amount of interest for the period preceding the institution of the suit, which together with any amount already realised as interest through Court or otherwise, is greater than the amount of the loan originally advanced. (2) Where, in any suit, as is referred to in Sub-section (I), it is found that the amount already realised as interest through Court or otherwise, for the period preceding the institution of the suit, is greater than the amount of the loan originally advanced, so much of the said amount of interest as is in excess of the loan shall be appropriated towards the satisfaction of the loan and the Court shall pass a decree for the payment of the balance of the loan, if any.

(3.) This section read by itself must be held to apply to suits only, because there is nothing in it to show that it will be applicable even after the suit has been decided and after the execution proceedings have been started. But Section 16 of the act reads thus: The provisions of Secs.10 to 15 shall apply (i) to suits brought by money-lenders in respect of loans advanced before the commencement of this Act, and pending on the date on which the said sections come into force, and (ii) to appeals and proceedings in execution arising in respect of decrees passed on 1 April 1936, or thereafter on the basis of loans whether such appeals or proceedings in execution were pending on, or instituted after, the date on which the said sections come into force.