1. This is a rule which arises out of the following facts. On 18th March 1919, the petitioner's father, Jnanada Prosad Sukul borrowed from Bonomali Roy predecessor-in-interest of the opposite party 1 to 4, a sum of Rs. 1900 at the rate of Rs. 19-8-0 per cent. per annum with yearly rests; on 19th August 1921, he again borrowed from the said Bonomali Roy a further sum of Rs. 2075 on the same terms; Jnanada died in January 1926 leaving behind him the petitioner and his brother, since deceased, as heirs under the Mitakshara School of Hindu law; as the petitioner was a minor at the time, the District Judge of Rajshahi in November 1926 appointed one Raghunath Sukul as common manager to the estate of the petitioner and his brother, and in January 1930 as guardian of the person and the property of the petitioner; certain payments by them amounting in all to Rs. 3226 were made towards the debts aforesaid and thereafter the said guardian as also the brother of the petitioner executed a registered instalment bond for Rs. 16,000 on 26th April 1930, in favour of Bonomali Roy for the satisfaction of the balance outstanding; subsequently, in November 1930, they executed in favour of Bonomali Roy a mortgage bond for Rs. 17,400 in satisfaction of the instalment bond aforesaid, the petitioner's brother died in 1931 leaving the petitioner as his successor by right of survivorship; in September 1936, Bonomali instituted mortgage Suit No. 18 of 1936 for Rs. 18,000 after giving deduction on account of payments; the said mortgage suit was decreed on compromise for a sum of Rs. 11,000 and costs on 12th July 1937, the petitioner there-after paid certain sums of money amounting to a total sum of Rs. 3334-6-9 towards the mortgage decree ; in October 1942, the opposite parties Nos. 5 and 6, who claim to be purchasers of the mortgage decree applied for execution of the decree in the Court of the Subordinate Judge, Rajshahi (Mort. Ex. Case No. 27 of 1942). The petitioner then on 21st April 1943, filed his application under Section 36, Bengal Money-Lenders Act, for re-opening the mortgage decree and the previous transaction embodied in the instalment bond of April 1930, (Misc. Judl. Case No. 30 of 1943) but the learned Subordinate Judge on 30th November 1943, dismissed the application as barred under Proviso (1) to Section 36, Clause (1) of the said Act; the petitioner thereupon obtained the present rule.
2. The only question in this rule is whether the petitioner is entitled to have the transaction of 26th April 1930, viz., the instalment bond re-opened. It is conceded by the petitioner that unless the instalment bond is re-opened he can get no relief merely by reopening the compromise mortgage decree. It is contended by the learned advocate for the petitioner that the expression 'date of the suit' in proviso (1) to Section 36, Clause (1), Bengal Money -Lenders Act, refers to a suit under Clause (1) of Section 36, namely to a suit either by the creditor or by the debtor and not to a proceeding in execution which can be treated as a suit under Section 2, Clause (22) of the Act; the mortgage suit, he urges, being instituted in September 1936, the instalment bond of April 1930, which was within 12 years of suit could be re-opened and the proviso to Section 36, Clause (1) could not operate as a bar; in support he relies upon four decisions of this Court in Naresh Chandra Gupta v. Lal Mamud Bhuiya ('42) 29 A. I. R. 1942 Cal. 379, Baidya Nath Dutta v. Mritunjoy Mukherji ('44) 31 A. I. R. 1944 Cal. 318, unreported decisions in P. A. No. 248 of 1941 and F. A. No. 2 of 1942. Of these the only one which apparently favours the view put forward before us by the petitioner is the decision in 48 C. W. N. 504 to which one of us was a party. The others in my opinion do not affect the question. In 48 C. W. N. 504 previous dealings between the parties were adjusted by the mortgage bond of 1925, reciting a consideration of Rs. 21,000, the suit on the bond was instituted in 1932 and a compromise decree obtained in 1934, execution case in connexion with the decree was started in 1938 and during the course of the execution proceeding application for relief under Section 36, Clause (6), Bengal Money-Lenders Act, was made by the petitioner. The learned Subordinate Judge refused to re-open the decree taking the view that the mortgage bond (1925) being beyond 12 years of the date of the application for execution (1938) Proviso (1) to Section 36, Clause (1), Bengal Money-Lenders Act, precluded the Court from granting relief, their Lordships held that the view taken by the Subordinate Judge was not correct and directed the trial Court to 're-open the decree.' As to re-opening the mortgage bond of 1925 their Lordships observed
this is a matter, however, which has to be considered by the Court in taking accounts between the parties and making a new decree.
3. There was no specific direction for re-opening the transaction of 1925. I do not think there-fore that the decision aforesaid is of much assistance to the petitioner. On the other hand the decision in ('43) 30 A. I. R. 1943 Cal. 137 Jagabandhu v. Akshoy Kumar to which the other one of us was a party which is directly in point and is cited by the opposite party goes against the petitioner's contention; I follow that decision and hold that the order passed by the Court below refusing to re-open the transaction of April 1930, is correct -- I accordingly discharge this rule with costs -- 2 gold mohurs.
4. I agree.