1. This Rule is directed against an Order made by the learned Subordinate Judge of Birbhum rejecting an application of the petitioner for the reopening of a decree under Section 36, Bengal Money-lenders Act. It is not necessary for us to reiterate the facts which have been stated with elaborate fulness in the judgment of the learned Subordinate Judge. The learned Subordinate Judge is of opinion that the petitioner would have been entitled to the relief claimed but for the fact that the case was hit by proviso (1) to Section 36, Bengal Money-Lenders Act, which precludes a Court from re-opening any adjustment or agreement purporting to close previous terms which were entered into by the parties more than 12 years from the date of the suit. The whole controversy centres round the point as to what is the date of the suit in the present case. It appears from the records that the mortgage bond in adjustment of previous claims of the parties was executed by the petitioners in favour of opposite party 1 on 20th October 1925, and it purported to be for a consideration of 21 thousand rupees. Upon this, a suit was instituted by the mortgagee in 1932 which culminated in a compromise decree on '28th July 1934. The execution case in connexion with this decree which is still pending, was started on 5th December 1938. The learned Subordinate Judge took the date of filing of this execution petition to be the date of the suit for the purpose of proviso (1) attached to Section 36 and as the mortgage bond of 1925 was beyond 12 years from this date he refused to re-open the decree.
2. In our opinion, the view taken by the learned Subordinate Judge is not correct. Proviso (1) to Section 36, Bengal Money-Lenders Act provides that in the exercise of the powers, the Court shall not '(1) reopen any adjustment or agreement purporting to close previous dealings and to create new obligations which has been entered into on a date more than 12 years prior to the date of the suit by the parties or any person through whom they claim.'
3. The suit mentioned in this proviso must mean the suit that is spoken of in Sub-section (1) of the section, i.e. to say it must be either a suit to which this Act applies and in which relief has been claimed by the borrower or it may mean the suit that is instituted under Sub-section (1) of Section 36 itself. In the present case there is no suit instituted under Section 36 (1), Bengal Money-Lenders Act, and the application was made during execution proceedings under Section 36 (6) (a) (i) of the Act. The suit, therefore, must refer to the suit to which the Act applies and the decree made in which is sought to be (opened. This in our opinion cannot but be the mortgage suit itself which was instituted in the year 1932. Under Section 2 (22), Bengal Money-Lenders Act, a suit to (which this Act applies means any suit or proceeding which is instituted or is pending on or after the 1st day of January 1939 and it includes a proceeding in execution. If a proceeding in execution of decree is pending on or after the 1st day of January 1939 the suit in which the decree was passed would be a suit to which the Act applies in accordance with Section 2 (22) of the Act but the execution proceeding itself could not be regarded as a suit, for in that case the Court would have to reopen a decree that is made in such execution proceeding which s absurd. The language of the Act is not happy but that is the only reasonable interpretation which we can put on that section. As the mortgage bond of 1925 was within 12 years from the date of the mortgage suit, we think that the decree made in the mortgage suit may be reopened under the provision of Section 36 (6) (a) (i), Bengal Money-Lenders Act.
4. It must be noted in this connexion that the petitioner was not right in saying that the real consideration for this mortgage bond of 1925 was Rs. 11,800 only. As a matter of fact there was a mortgage deed for Rs. 27,400 executed on 27th September 1909 which was beyond 12 years from the date of the mortgage suit and this was a joint mortgage bond executed by the petitioner in favour of opposite party 1 and his brother. This mortgage bond could not, in our opinion, be re-opened. This is a matter, however, which has to be considered by the Court in taking accounts between the parties and making a new decree. The result, therefore, is that we make this Rule absolute and set aside the Order of the learned Subordinate Judge. This matter will go back to the trial Court who will reopen the decree and make a new decree in accordance with the directions given above. Mr. Apurba Charan Mukherji has raised a point that unless Nrityagopal, the brother of opposite party 1 who was a party to the mortgage dated 27th September 1909, is made a party to this proceeding, the accounts could not properly be reopened. This is a matter which will also be considered by the trial Court and if necessary, Nritya Gopal may be made a party to this proceeding. We make no Order as to costs.