1. This appeal is on behalf of the judgment-debtors and it is directed against an order made by the Subordinate Judge, first Court, Hooghly, on an application presented by the appellants under Section 36, Bengal Money-lenders Act, in connection with the execution of a mortgage decree. The material facts are not in controversy and may be shortly stated as follows : The respondents who were mortgagees instituted a suit against the appellants to enforce their mortgage bond, and a preliminary decree was passed in their favour on 22nd December 1939. The rate of interest stipulated in the mortgage bond was 12 per cent. (compound) with half-yearly rests. The Court considered this to be excessive and reduced it to 10 per cent. (simple) in exercise of its powers under the Usurious Loans Act of 1918 and the Bengal Money-lenders Act of 1933. The decree was made final on 17th May 1940. The decree-holders applied for execution of the decree by sale of the mortgaged properties in Title Execution Case No. 16 of 1940, and in course of these execution proceedings the judgment-debtors, on 11th November 1940, presented an application under Section 36 (6) (a) (i), Bengal Moneylenders Act, 1940, praying inter alia that they might be relieved of the liability to pay interest in excess of what was permissible under Section 30 of the Act, and that a new decree might be passed allowing them to pay the decretal dues in 20 yearly instalments. The Subordinate Judge allowed this application in part; the decretal dues were reduced by a sum of Rs. 1363-15 As. which was found by the Court to be the excess interest allowed by the decree in contravention of the provision of Section 30, Bengal Money-lenders Act. The Court, however, refused the prayer for instalments, being of opinion that such order could be made only at the time of passing the preliminary decree and not afterwards. It is against this part of the judgment that the present appeal has been preferred.
2. Mr. Ramaprosad Mukherjee who appears for the decree-holders respondents has taken a preliminary objection relating to the competency of the appeal. His contention is that the order of the Subordinate Judge does not come under Section 47, Civil P.C., and is consequently not appealable as such. The appellants, therefore, could not have preferred this appeal as an appeal from an order under Section 47 of the Code. He concedes that it was open to the judgment-debtor to file an appeal against the decree itself as amended by the Court below, and that could have been heard as an appeal from an original decree provided it was presented in due form and the requisite court-fees were paid. Mr. Das who appears for the appellant contends, on the other hand, that the order appealed against does come within the purview of Section 47, Civil P.C. In our opinion, the contention of Mr. Mukharjee is sound and should be accepted. Under Section 36 (6) (a), Bengal Money-lenders Act, the powers conferred by Sub-clauses (i) and (ii) of the section could be exercised by the Court which passed the decree, when the suit was one to which the Act applied and the decree was not satisfied by 1st January 1939, either in a proceeding for execution of such decree or on an application for review of such decree made within one year from the date of the commencement of the Act. No provision for appeal has been made in the Act, when the Court grants or refuses to grant any relief under the sub-section, either in a proceeding for execution of the decree or in an application for review. As no right of appeal exists or can be assumed, unless expressly given by a statute, the orders passed by the Court under Section 36 (6) (a) could be challenged by way of appeal only when they are appealable under the provisions of the Civil Procedure Code. If an order is made on an application for review under Section 36 (6) (a) (ii), Bengal Money-lenders Act, no difficulty arises, in our opinion, in determining the rights of appeal. If the Court grants the prayer of the judgment-debtor and makes a new decree in the suit under Section 36 (2), an appeal would lie from the new decree under the provisions of the Civil Procedure Code : vide : AIR1931Cal323 and Sm. Soudamini Dasi v. Nabalak Mia : AIR1931Cal578 . If, on the other hand, the application is refused, no appeal would be competent and the only remedy of the judgment, debtor would be to come up by way of revision to this Court.
3. When the order is made in execution proceedings, the question that requires consideration is whether such order comes under Section 47, Civil P.C. If this question is answered in the affirmative, an appeal would lie, whether any relief is granted or refused by the Court, provided the order is a final one and not merely interlocutory. In order to attract the operations of Section 47, Civil P.C., it is necessary that the order must be made by the executing Court and it must determine, as between the parties to the suit or their representatives, any question relating to execution, discharge and satisfaction of the decree. It seems to us to be extremely doubtful whether the powers which the Court exercises under Section 36 (6) (a) (i), Bengal Money-lenders Act, are exercised by it as an executing Court. Belief under Section 86 (6) (a) can be given only by the Court which passed the decree, and its jurisdiction can be invoked either in course of an execution proceeding pending before it, as is laid down in Sub-clause (i) or on a proper application for review as contemplated by Sub-clause (ii). But, in either case, it is the trial Court which has the jurisdiction to grant reliefs; an executing Court as such, e. g., the Court to which decree is transmitted for execution, has no authority in such matters.
4. But even if the order passed by the Court under Section 36 (6) (a) (i), Bengal Money-lenders Act, be taken to be one made by an executing Court as such, we do not think that it can be said to decide a question relating to execution, discharge or satisfaction of a decree. Under Section 47, Civil P.C., the executing Court can decide any question, the order in respect of which furthers, hinders or affects the manner of the carrying out of execution of the decree. It can decide also whether the decree that is going to be executed is a subsisting and operative decree, capable of execution. But it cannot reopen the decree and pass a new decree as it considers proper. The powers that are conferred by Sub-clauses (i) and (ii) of s.36 (6) (a) can, in our opinion, never be exercised by an executing Court under Section 47, Civil P.C. The Act has not said anywhere that an order made under Section 36 (6) (a) (i) would be treated as one under Section 47, Civil P.C., and the mere fact that it is made in execution proceedings is not sufficient to attract the operation of the section when the question for determination is one which cannot by any stretch of reasoning come within its purview. On the other hand, it seems that the whole object of the section is to create a special and anomalous jurisdiction, under which various directions could be given, some of which relate to the execution department while others relate to the re-opening of the decree and to the making of a new decree; and all these powers could be exercised not only in execution proceedings but also in the suit itself on an application for review.
5. In our opinion, therefore, an order made under Section 36 (6) (a) (i), Bengal Money-lenders Act, either granting or refusing a prayer for re-opening a decree does not come under Section 47, Civil P.C., and is not appealable as such. If the decree is re-opened and a new decree made, an appeal would undoubtedly lie against the new decree which supersedes the old, under Section 96, Civil P.C. Such an appeal could be taken not only by the decree-holder who is prima facie aggrieved by the amendment, but by the judgment debtor also on the ground that it did not go far enough in his favour. But if the application of the judgment-debtor under S.36 (6) (a) (i), Bengal Money-lenders Act, is refused, there is no provision of law under which an appeal would lie against the order of refusal and the only remedy of the aggrieved party would be to apply for revision under S.115, Civil P.C. The remedy of the aggrieved party is, therefore, practically the same whether the order is made under Sub-clause (i) or Sub-clause (ii) of Section 36 (6) (a).
6. In the case before us the decree has been amended in part and the decretal dues have been reduced, although the Court below did not go further in making a new mortgage decree allowing instalments as prayed for by the judgment-debtor, in the manner contemplated by Section 34 of the Act. The judgment-debtors, in our opinion, have a right of appeal against the amended decree which is now the final decree in the suit and in that appeal they can raise the question of instalments which were denied to them by the Court below. No appeal, however, lies against the order refusing the prayer for instalments as an appeal from an order under S.47, Civil P.C. We, therefore, agree with Mr. Ramaprosad Mukherjee that the judgment-debtors should have preferred an appeal against the amended decree itself. The present appeal that is before us can easily be converted into an appeal from a decree. It is only necessary to file a certified copy of the amended decree, if any such decree has been drawn up, and as Mr. Das confines his appeal to the claim for instalments only, a court-fee of Rs. 15 only has got to be paid. 'We allow Mr. Das a fortnight's time within which he can pay the deficit court-fees and file a certified copy of the amended decree, if such decree has been formally prepared. He can also make the necessary corrections in the memorandum of appeal within that time. On these things being done the appeal will be treated as an appeal from an original decree and be heard and disposed of accordingly. The appellants will be at liberty to move an application for stay of execution of the decree as soon as the present appeal is converted into one from original decree.