MAHIUDDIN BISWAS Vs. GOPI CHARAN MONDAL

JUDGEMENT

(1.) This Rule raises a question, which so far as we are aware, has not yet been decided. The question is whether a suit for recovery of a loan would be taken to be a suit to which the Bengal Money-Lenders Act applies by reason of the fact that the decree-holder had filed a statement of claim after 1 January 1939, on the basis of his decree to a Debt Settlement Board (hereafter called the Board) established under the Bengal Agricultural Debtors Act in pursuance of a notice issued under the provision of Section 13 of that Act, the debtor having applied to settle his debts under Section 8. It would be unnecessary to decide the other questions raised before us, if this question be answered in the negative.

(2.) The opposite party, Gopi Charan Moldal filed a suit in 1933, to enfores two mortgages executed in his favour by the petitioner, one on 21 January 1921 which secured a loan of Rs. 381, and the other on 11 July 1927, which secured another loan of Rs. 946. The Properties mortgagd ofeight items of immovable porperty. The eates of interest stipulated are in excess those allowed by Section 30, Bengal Money-Lenders Act. On 3l July, 1935, he obtained a final decree for Rs. 2930 odd on account of principal and interest, besides costs. The amount for which the final decree was passed is also in excess of what can be allowed under the Bengal Money-Lenders Act. 2. The opposite party took out execution and at the execution sale purchased six out of the light items of mortgaged property on 22 December, 1936, for the sum of Rs. 2500. That sale was confirmed in 1937 and possession was taken by him on 25 April 1937. That execution thus came to an end in 1937. He has not since then applied for further execution.

(3.) On 25 June 1938, the judgment-debtor applied under Section 8, Bengal Agricultural Deb-tors Act, to a Debt Settlement Board estab-lished under that Act for settlement of his debts. He filed a statement in the form provided for in Section 11 of that Act, but in that statement be did not mention the opposite party as one of his creditors. In pursuance of the general notice issued under Section 13, the opposite party filed a statement on 11 February 1939, wherein he stated that a sum of Rs.1178 odd was still due to him on the mortgage decree which was passed in his favour on 31 July 1935. On the Bengal Money-Lenders Act coming into force on 1 September 1940, the debtor did not proceed with his application before the Debt Settlement Board, which was dismissed for default some time in the year 1941. On 14 January 1941, he made an application under Section 36, Bengal Money- Lenders Act, for re-opening the mortgage decrees. The learned Subordinate Judge has dismissed the said application by his Order dated 19 June 1941. The debtor applied to this Court and has obtained the aforesaid rule.