1. This is a Second Appeal from the judgment and decree of the learned Additional District Judge, U. A. D., dated 30-11-1950, by which he modified a personal decree passed in a mortgage suit by the learned Subordinate Judge, U. A. D., Silchar, dated 26-4-1948.
2. The plaintiff, one Rajani Kanta Chaudhury, brought a suit against one Surendra Mohan Deb and his three brothers upon a registered mortgage bond, dated 24th Kartik, 1332 B. S. for a sum of RS. 2000 with interest at the rate of 0-14-0 (fourteen annas) p. c. p. m. The defendant-mortgagors failed to pay the mortgage amount, whereupon the plaintiff brought the present suit, in which the trial Court passed a preliminary mortgage decree. On the failure of the mortgagors to comply with the terms of the preliminary mortgage decree, a final mortgage decree was passed on 13-5-1940. In due course, the mortgaged property was put to sale, but the sale failed to realise the amount for which the final decree was passed on 13-5-1940. On 24-9-47 the mortgagee applied for a personal decree under Rule 6 of Order 34, Civil P. C. The trial Court passed a personal decree against the mortgagors in the sum of Rs. 500 odd giving them the benefit of the provisions of the Assam Money Lenders' (Amendment) Act (Act 6 of 1943) in view of the language of sub. 8. (2) of Section 1 of the Act, which is in these terms : 'It shall come into force at once and it shall apply to pending suits and appeals.'
3. Before the trial Court, the defendant mortgagor contended that the Assam Money Lenders' (Amendment) Act, 1943 applied to the present suit as at the time of the passing of the personal decree, the mortgage suit brought by the mortgagee-plaintiff was a pending suit. The mortgagors' contention was accepted by the trial Court, and as the principal amount of the loan was Rs. 2000, and the mortgagee had admittedly already received Rs. 3816, the trial Court passed a personal decree against the mortgagors for Rs. 564-1-9 only. The mortgagee preferred an appeal to the District Court and the learned Additional District Judge took the view that as a final mortgage decree had been passed in 1940 for a specified amount, the amount could not be reduced when the trial Court was called upon to pass a personal decree.
4. Mr. Ghose for the mortgagor-appellants contends that the view taken by the lower Appellate Court is not a correct view, that it is opposed to the plain meaning of Section 5, Assam Money Lenders' (Amendment) Act, 1943, which has modified Section 9 of the parent Act of 1934 in these terms :
'5. That for Section 9 of the principal Act, the following shall be substituted, namely :--
9. (1) No money-lender shall, in respect of any loan made before or after the commencement of this Act, recover, on account of interest and principal, whether through Court or otherwise or by way of usufruct of lands in usufructuary mortgages, a sum greater in aggregate than double the principal of the loan.'
5. The main question for my consideration is whether the personal decree passed by the trial Court upon an application made under Rule 6 of Order 34, Civil P. C. was passed in a pending suit. Order 34, Rule 6, Civil P. C. is in these terms :
'6. Recovery of balance due on mortgage in suit for sale.--Where the net proceeds of any sale held under the last preceding rule are found insufficient to pay the amount due to the plaintiff, the Court, on application by him may, if the balance is legally recoverable from the defendant otherwise than out of the property sold, pass a decree for such balance.'
Manifestly when Rule 6 says pass a decree for such balance it must mean a decree in the suit notwithstanding the fact that there is already a preliminary and a final mortgage-decree. Rule 6 of Order 34, Civil P. C., has been the subject-matter of interpretation by the Calcutta High Court. The earliest decision is reported in Puma Chandra Mandal v. Radha Nath Das, 4 cal. L. J. 141, when mortgage suits were governed by Section 90, T. P. Act. Order 34, Civil P. C., now takes the place of Section 90, T. P. Act. In delivering the judgment of the Court, Mookerjee J., observed :
'It seems to be obvious that the object of Section 90 is to obviate the necessity for a fresh suit possibly in a Court different from that which passed the decree for sale; the proceedings founded on an application under Section 90 are a continuation of the original suit; the relationship of decree holder and judgment-debtor created by the decree for sale is no longer of any benefit to the decree-holder, and the parties are, therefore, again practically relegated to the position of plaintiff and defendant.'
I cannot usefully add to the learned Judge's observations. I think the observation, namely, 'the parties are, therefore, again practically relegated to the position of plaintiff and defendant' clinches the issue as to the true meaning of Rule 6 of Order 34, Civil P. C. If then for the purposes of a decision upon an application made under B. 6 of Order 34, Civil P. C., the parties are relegated to the position of plaintiff and defendant, it seems to me that it is difficult to contend that the personal decree passed under Rule 6 of Order 34, Civil P. C., is not a decree passed in a pending suit.
6. In S. K. Ajaraddi v. S. M. Sonai Bibi, 49 cal. W. N. 638, Chakravartti J., referred to a case reported in Aparna Kumari v. Girish Chandra, 48 cal. w. N. 406 (S.b), where jt was stated :
'that where all the decrees had been passed before 1-1-1939, and no proceeding in execution was pending on that date or instituted thereafter, the decrees were not decrees in a suit to which the Act applied and, therefore, the mortgage suit was not pending on 1-1-1939, as after the passing of the personal decree there was nothing undecided.'
and observed : 'This observation implies that as long as the personal decree is not passed, the suit remains pending.' Chakravartti J., then referred to a decision of the Pull Bench in Francis Higgins Pell v. Minnie Gregory, 29 cal.W.N. 678:
where it was held :
that an application for a personal decree is not an application for enforcing a judgment or decree but an application for a new decree in the suit.' and observed :
'Clearly then, the suit subsists as long as an application for a personal decree can legally be made. . . . Apart from authority, the scheme of Order 34, Civil P. C., and the respective forms of the three decrees suggest, to my mind conclusively that the real decree in a mortgage suit is the preliminary decree and the other two decrees are merely further orders but orders made in the suit which does not run out its full course till the last of the decrees has been passed.'
In other words, the view of the Calcutta High Court is that until a personal decree is passed or the time of limitation for passing a personal decree has run out, the suit is pending.
7. In Francis Higgins Pell v. Munnie Gregory, 29 cal. W. N. 678 (F. B.), to which reference has been made by Chakravartti J., in S. K. Ajaraddi v. S. M. Sonai Bibi, 49 cal. W. N. 638, Buckland J., observed :
'But there is the further difficulty that a decree under Rule 6 involves an adjudication upon matters which up to that point have not been determined for it is not in every case of mortgage that a plaintiff has a right to a personal decree. The sum due to him no doubt has been ascertained, but for the purpose of a decree under Rule 6, matters have yet to be determined which would not have been relevant to an adjudication upon the plaintiff's rights against the property. Upon such further adjudication as the case may require, a decree under Rule 6 may be made, but that is not by way of enforcing any existing judgment or decree.'
8. Mr. Lahiri for the respondent, on the other hand, contends that for the purpose of ascertaining whether the Assam Money-lenders' (Amendment) Act, 1943 has any application to the facts of this case, it is necessary to refer to the definition of the word 'decree' in Section 2, Civil P. C., that by the final mortgage decree passed in 1940, the Court had formally given expression to an adjudication conclusively determining the rights of the parties with regard to all or any of the matters in controversy. I am unable to accept the interpretation that a final mortgage decree conclusively deter-mines the rights of the parties. As stated by Buckland J., there are other rights of the parties which have yet to be determined upon an application made for the passing of a final decree.
In Rule 6 of Order 34, Civil P. C., the words 'if the balance is legally recoverable from the defendant otherwise than out of the property sold' mean that some right bearing upon the personal liability of the mortgagee still remains to be decided. Mr. Lahiri contends that the only right which remains to be decided under Rule 6 of Order 34 is whether or not, the application for the passing of a personal decree is time-barred. Even assuming that this is the only right which remains to be decided under Rule 6--as to which I express no opinion--it follows that the rights of the parties are not conclusively determined by the final mortgage decree. The question of the extent of the personal liability of the mortgagor is also a live question at the time of the passing of a personal decree--a question which can be determined only on the supposition that the suit is still pending.
9. Mr. Lahiri next referred to Section 6, Assam General Clauses Act, 1915, which bears upon the interpretation of repealing Acts. It is plain that the terms of Section 6 are controlled by the words 'unless a different intention appears'. A different intention may be gathered from the language expressly used in that behalf or by necessary implication. The Assam Money Lenders' (Amendment) Act, 1943, applies in express terms of Sub-section (2) of Section 1 to pending suits. Mortgage suits in which a personal decree can be passed and remains to be passed, but has not yet been passed, are, in my opinion, pending suits, and relief can be given to a mortgagor in terms of Section 9, Assam Money Lenders' (Amendment) Act, 1943, when a personal decree is sought to be passed after the Act came into force.
10. Mr. Lahiri contends that from the mere use of the words 'it shall apply to pending suits and appeals' in Sub-section (2) of Section 1, Assam Money Lenders' (Amendment) Act, 1943, the Court is not competent to modify a final mortgage decree. His contention is that in the absence of appropriate Words in the Assam Money Lenders' (Amendment) Act, 1943, giving Courts power to reopen a final decree, Courts are not competent to modify the terms of a final mortgage decree when they are called upon to pass a personal decree for the balance. In this connection, Mr. Lahiri has relied upon Sections 30 and 36, Bengal Money Lenders Act, 1940, in which apparently there is a provision giving power to the Court to reopen the account. I do not think it is necessary that the Assam Act should be a copy of the Bengal Act. If from the language of the Assam Act, the necessary implication is that for the purpose of computing the amount due, a certain calculation is to be adopted, there is no bar against adopting that calculation, and it is not necessary that Legislature should confer power upon Courts in express terms to reopen a final mortgage decree. In this connection, Mr. Lahiri has relied upon a case reported in Sylhet Loan & Banking Co. Ltd. v. Ahmad Mujtoba 50 cal. W. N. 417, a case which, in my opinion, has no application to the facts before me. In 50 c. w. N. 417 the learned Judges were dealing with pending execution applications, and not suits. The Bengal Money Lenders Act, 1940, like the Assam Act, does not refer to pending executions, but only to pending suits and appeals. Mr. Lahiri next referred to a decision reported in Ziaul Hasan v. Mt. Ruquyia Begum; A. I. R. 1948 ALL. 123. The bead-note of the decision reads as follows :
'From the mere fact that proceedings under Order 34, Rule 6, Civil P. C., are not proceedings in execution but are proceedings in the suit itself, it does not follow that on the date when the U. P. Debt Redemption Act came into force, the mortgage suit which had been decided by the passing of the final decree before the Debt Redemption Act came into force could be said to be still pending.'
If the learned Judges of the Allahabad High Court have laid down the law that a personal decree under Order 34, Rule 6, Civil P. C., is not a decree passed in a pending suit, with all respect, I am unable to agree. I prefer to follow the reasoning of Mookerjee J., in Puma Chandra Mandal v. Radha Nath Das, 4 Cal. L. J. 141, to which I referred in the earlier part of my judgment. The view of the learned Judges of the Allahabad High Court, in my opinion, is opposed to the view of their Lordships of the Privy Council reported in Joychand Lal v. Kamalaksha Chaudhuri, A. I. R. 1949 P. C. 239. In dealing with this particular aspect of the case Sir John Beaumont, delivering the judgment of the Board, observed :
'Mr. Pringle for the appellant conceded, rightly as their Lordships think that the suit was pending so long as there was a right to obtain a personal decree which was not barred under Section 181, Limitation Act.'
11. Accordingly I set aside the judgment and decree of the lower Appellate Court and restore that of the trial Court with costs throughout.
12. Leave to appeal sought against this decision under Clause 15, Letters Patent of the Calcutta High Court, is refused.