(1.) This appeal is by the judgment-debtor and arises in connexion with an application for review filed by the appellant under the provisions of Section 36 (6), Bengal Money-Lenders Act. As there was some doubt as to the competency of the appeal there is an alternative application in revision. My own view is that the appeal is competent and that has not been challenged on behalf of the decree-holder. The position is this: It is now well-settled that, if the application of the petitioner had been rejected by the Munsif, the remedy would have been by way of revision. The application was, however, successful. The decree was reopened and a new decree was passed. It is also well-settled that the respondent was entitled to appeal against the new decree. He did so with the result that the new decree was set aside and the original decree has been restored. Certainly the practical effect of that is that the original application has been rejected. The lower appellate Court, however, has done really more than reject an application for review but has set aside a decree within the meaning of the Code of Civil Procedure. On this view a second appeal is competent.
(2.) Now when the appellant filed his application he had a good case, because he relied upon the decision of Edgley J. in Suresh Channdra V/s. Lal Mohan In view of that decision all that he had to show was that the decretal amount was not paid in full. As I felt unable to follow this decision I referred the matter to a Division Bench with the result that the decision has been overruled. On this view the learned Judge set aside the decision of the Munsif. This being the position the appellant's case is quite hopeless unless he can rely upon a certain title suit which was filed after 1 January 1939. Part of the mortgaged property was purchased, in execution by the decree-holder. The sale was confirmed on 25 September 1935 and delivery of possession was taken on 10 March 1936. A title suit was instituted on the allegation that the decree-holder was subsequently dispossessed and the relief prayed for was a declaration of his title and delivery of possession.
(3.) It would obviously be impossible to fit this suit into the definition of a "suit to which the Act applies" in Section 2 (22) wide though that definition undoubtedly is. It was however argued by Mr. Farhat AH that Section 36 applies to that suit in view of the provisions of Sub- section (4) That Sub-section applies the main provision to any suit, whatever its form may be, if such a suit is substantially one for the recovery of a loan or for the enforcement of any agreement. The appellant made the usual application under Order 21, Rule 90 and that application was fought up to this Court in revision. There was then what is a common form of settlement i. e., it was agreed that, if a certain sum was paid within a certain time, the sale would be set aside. The title suit obviously is not a suit to recover the loan. If the decree- holder loses the suit, he will lose both the land and his money. If it were a suit for the enforcement of the agreement, the appellant would have been the plaintiff instead of the defendant.