1. This appeal is on behalf of the plaintiff and arises out of a suit under Section 36, Bengal Money-lenders Act. The suit has been dismissed by the Courts below. The plaintiff now appeals to this Court.
2. The facts are more or less admitted and may be stated as follows: On 20th December 1921, the plaintiff borrowed a sum of Rs. 1493 8-0 on a mortgage of certain properties. The interest stipulated to be paid was Rs. 1 per cent. per month. On 7th July 1922, the plaintiff again borrowed a sum of Rs. 995. The interest stipulated Rs. 1-4-0 per cent. per annum with annual rests. A sum of Rs. 408.15 0 was paid by the plaintiff towards the interest due on the aforesaid mortgages. In 1934 the defendants instituted a suit for recovery of the sums due on the said mortgages. The claim was laid at Rs. 1800 on the first mortgage and a sum of Rs. 700 on the second mortgage. No interest was claimed. On 12th February 1936, a preliminary decree was passed in the mortgage suit for a sum of Rs. 2773 9-3 on account of principal, and interest. This sum included the claim in the mortgage suit viz; Rs. 2000 and a sum of Rs. 773-9-0 as interest pendente lite. The decree carried interest at 6 per cent. per annum. On 26th August 1936 a final decree was passed. The mortgagees started execution proceedings in 1939 and the mortgage properties were brought to sale on 21st September 1942. The plaintiff thereafter brought the present suit for relief under Section 36, Bengal Money-lenders Act. As already stated both Courts have dismissed the plaintiff's suit.
3. Mr. Roy appearing on behalf of the plaintiff appellant has first contended that after the execution of the mortgages the mortgagees went into possession of Lot No. 8 and certain other lots and profits of these properties should be taken into account. As regards the other lots it appears that the mortgagees purchased the same in execution of a certificate and went into possession. As such, so far as these lots are concerned no question arises as the plaintiff cannot get restoration of possession of these lots, the mortgagees being in possession under independent title. This view is supported by the decision in the case of Kamalakshya Choudhury v. Joychand Lal Babu, 48 C. W. N. 105 since affirmed by the Judicial Committee in the case of Joychand Lal v. Kamalakshay Choudhury . As regards Lot No. 8, Mr. Roy's contention is that as the defendants-mortgagees possessed the same qua mortgagee in order to find out the same due on the loans the profits received by the defendants mortgagees should be taken into account and if this amount is taken into account it would appear that the mortgage decree was for a sum which exceeded the limits provided for in Section 30, Bengal Money-lenders Act. The case of the defendants mortgagees is that the defendants mortgagees were put in possession not qua mortgagee but in satisfaction of their dues in respect of another loan of Rs. 4000 which was due by the plaintiff to the defendants. In order to establish this fact the defendants relied on the decision on this point in the mortgage suit and submitted that this was res judicata between the parties. Mr. Roy on the other hand, contended that the finding in the mortgage suit on this point is not res judicata because in order to ascertain the principal of the loan the Court has to enquire in this proceeding what sum was really due as principal of the loan. Mr Roy relies on the decision in the case of Provabati Mitra v. Anil Kumar Das : AIR1943Cal629 . The facts of that case are somewhat different. In that case in a previous suit the question arose whether a sale of the properties of a minor was justified by legal necessity. The Court in deciding the question of the legal necessity came to the finding that the loan was incurred for purposes of joint family business. Thereafter proceedings were taken under the Bengal Money-Lenders Act. In this proceeding a question arose whether the finding in the previous suit operates as res judioata. This Court held that as the question was not directly and substantially in issue in the earlier suit the finding that the loan was for business purposes was not res judicata. This decision does not therefore touch the present question. On the other hand in the case of Indra Sekhar v. Rati Kanta Haldar : AIR1947Cal447 it has been held that a decision in the mortgage suit which was necessary to sustain the decree in that suit would operate as res judioata in the later proceedings under the Bengal Money-lenders Act. This decision covers the present point. The first contention raised by Mr. Roy must therefore be overruled.
4. The second contention raised by Mr. Roy was that as the mortgage decree provided for interest after decree, the decree is liable to be reopened under Section 31, Bengal Money-lenders Act. This question arose in the case of Devraj Ray Pandey v. Lalji Morarji Ranchord, 48 C. W. N. 200. It was held by this Court that if the interest due up to the decree does not contravene Section 30(1), Bengal Money-lenders Act, the fact that the decree provided for post decree interest is not material. At p. 201 their Lord-ships make the following observations :
'Section 36 does not give the power to the Court to re-open a transaction or a decree simply because the provision of Section 31, Bengal Money-lenders Act, had been contravened.'
The second contention raised by Mr. Roy must also be overruled.
5. The third contention raised may be stated as follows : It is argued that as the decree provided for interest pendente lite at 12 per cent. per annum this fact is sufficient to entitle the borrower to re-open the decree. It is to be noted that in the mortgage suit no interest was claimed on the sums claimed as being due on the mortgages. It is also admitted that the total sum decreed together with the interest already paid did not contravene the provisions of Section 30, Bengal Money-lenders Act. The sum awarded as interest including the interest already paid is less than the principal of the loans. It is also less than the sum which would be due as interest if interest was calculated on the principal sum advanced at the statutory rate of 8 per cent. per annum. The question therefore is whether the bare fact that the Court awarded interest for the period in suit at 12 per cent. per annum, that is, in excess of the statutory rate of 8 per cent, per annum, entitles the borrower to re-open the mortgage decree. This question arose in the case of Romesh Chandra v. Jnanada Prosanna : AIR1942Cal39 Mukherjee and Roxburgh JJ. were of the opinion that in order to find out whether the interest decreed contravenes Section 30(1) the total interest which was allowed by the decree has got to be taken into account. Mr. Roy relies on the decision of this Court in the case of Sanat Kumar v. Pramatha Nath : AIR1944Cal325 . In that case the appeal arose out of an application under Section 38, Bengal Money-Lenders Act. The facts were that interest had been paid for a certain period at less than the statutory rate and for a certain other period in excess of the statutory rate. The total interest paid did not exceed 8 per cent per annum. In taking the account between the parties this Court held that during the period when interest was paid at more than 8 per cent, per annum the excess payment of interest must be taken towards satisfaction of the principal of the loan and the amount should be adjusted on this basis. No decree on the mortgage had been passed. The case therefore came within Section 30(1), Bengal Money-Lenders Act and not under Section 30(2) Bengal Money-Lenders Act. Before this Court on behalf of the creditor reliance was placed on the decision in the case of Ramesh Chandra v. Jnanada Prasanna : AIR1942Cal39 , already referred to. Nasim Ali J. delivering the judgment of the Court observed that the facts of that case were different and that decision was not applicable to the case then before this Court. The decision in the case of Sanat Kumar v. Pramatha Nath : AIR1944Cal325 therefore does not cover the present suit. It may be stated that the decision of this Court in the case of Sanat Kumar Mukherjee v. Pramatha Nath Roy, : AIR1944Cal325 has since been affirmed by the Federal Court Pramatha Nath v. Sanat Kumar, 53 C. W. N. (F. B.) p. 12 : (A.I.R (36) 1949 P.C. 60).
6. The only other case which bears on this question is a decision of Sen J. in the case of Mohini Mahan Roy v. Ashutosh Ghose Bahadur : AIR1942Cal367 . In that case which arose out of proceedings under Section 36, Bengal Money-lenders Act, the interest which was awarded upto the date of the preliminary decree did not contravene the provisions of the Bengal Money-lenders Act, but if the interest upto the period of grace was taken into account, the total interest awarded under the decree exceeded the limits imposed by Section 30, Bengal Money-lenders Act. The question that was agitated was whether the interest since the preliminary decree down to the date fixed for payment is interest within the meaning of Section 2(8), Bengal Money-lenders Act. This question was answered in the affirmative by the learned Judge. In so holding Sen J. relied on the decision in the case of Kusum Kumari v. Debi Prosad, and observed that the contract embodied in the mortgage bond remains effective up to the period of grace and after that date the matter passes from the domain of contract to the domain of judgment. How far the observations relied on are good law in view of the decision of the Federal Court in the case of Jai Gobind Singh v. Lachmi Narain Bam, 44 C. W. N. (F. R.) p. 21: (A.I.R. (27) 1940 P. C. 20) is a question with which we are not concerned in this appeal. We may observe that the decision of the Federal Court has since been followed by this Court and the authorities bearing on the point are discussed in the case of Kumar Pramatha Nath Roy v. Ramani Kanta Roy, (unreported decision of this Court in F.A. 186 of 1941). The decision of Sen J., however, did not specifically decide the present question. All that was decided was whether the sum awarded as interest since the date of the preliminary decree down to the date of grace could be regarded as interest within the meaning of the Bengal Money, lenders Act. The view which was taken in the case of Ramesh Chandra v. Jnanada Prasanna : AIR1942Cal39 is a Bench decision of this Court and having regard to the terms of Section 30(2), Bengal Money-lenders Act which speaks of the interest included in the decree, we are not inclined to dissent from it. The third contention raised by Mr. Roy must also be overruled. The result is that this appeal fails and must be dismissed with costs.