1. The defendant executed in favour of the father of the plaintiff two mortgages in respect of the same property, on 17th July 1923 and 19th June 1925, for Rs. 5000 and Rs. 2000, respectively. Interest was payable at 15 per cent. per annum in respect of the first bond and at 18 per cent, per annum in respect of the second bond according to the stipulations in the bond. The mortgagee thereafter instituted a suit in the Court of the Subordinate Judge at Howrah in the year 1930 for recovery of Rs. 15,500 on the two mortgage bonds. The suit was decreed in full and a preliminary decree was passed on 24th February 1931, for a sum of RS. 19,803-2-0 including interest pendente lite amounting to Rs. 3058-12.0 and costs of the suit amounting to RS. 1244-6-0. The preliminary decree was made final on 30th March 1931. In execution of the final decree, the mortgaged properties were sold and were purchased by the mortgagee for Rs. 10,000 on 8th March 1932. Before the sale the mortgagor paid Rs. 5375 to the mortgagee towards part satisfaction of the decree. The sale was confirmed on 13th August 1932. The mortgagee obtained possession of the properties purchased by him on nth September 1932, through Court. On 26th May 1934, the mortgagee applied for and obtained a personal decree under Order 34, Rule 6, Civil P.C. On 27th March 1935, the mortgagee died leaving the plaintiff as his only heir. This personal decree was put into execution on 2lst May 1937, in Execution case NO. 30 of 1937. On 15th June 1937, this execution case was dismissed for nonprosecution. The personal decree was again put into execution on 18th May 1940, in Execution Case NO. 27 of 1940. This execution ease was again dismissed for default on 11th June 1940. The Bengal Money-lenders Act (Bengal Act 10 of 1940, hereafter called the Act) came into force on 1st September 1940. On 19th November 1940, the defendant applied for review under Section 36 (6) (ii) of the Act. In this application he prayed for the reopening of the preliminary mortgage decree, the final mortgage decree and the personal decree and for certain other reliefs. The Subordinate Judge allowed this application on 30th June 1941 and passed a new preliminary decree under Section 34, Bengal Money-lenders Act. On 4th August 1941, plaintiff appealed to this Court. This appeal came up for hearing before a Division Bench of this Court.
2. The question before the Division Bench was whether the Subordinate Judge was right in reopening the preliminary mortgage decree, the final mortgage decree and the personal decree and in passing a new decree under Section 34, Bengal Money-lenders Act. In Naresh Chandra Gupta v. Lai Mamud Bhuiya : AIR1942Cal379 and in Bhabani Prosad Maitra v. Satyendra Nath Mukherjee : AIR1943Cal372 . It was held that the preliminary decree and the final decree could not be re-opened under Section 36 of the Act, but the personal decree was liable to be re-opened. In Abdul Wahed Howladar v. Sukumari Debi : AIR1942Cal568 . it was held that all the three decrees can be re-opened under Section 36 of the Act. On account of this conflict of opinion the following question has been referred to a Full Bench:
Where in a suit for the recovery of money lent upon a mortgage, the final decree was executed by the sale of the mortgaged property before 1st Janujary 1939, but a personal decree for the unrealised balance remained unsatisfied on that date, can the Court in exercise of its powers under Section 36, Bengal Money-lenders Act, reopen the preliminary decree and final deoree as well as the personal decree so as to affect all three?
The material provisions of Section 36 are these:
36. (1) Notwithstanding anything contained in any law for the time being in force if in any suit to which this Act applies...the Court has reason to believe that the exercise of one or more of the powers under this section will give relief to the borrower it shall exercise all or any of the following powers as it may consider appropriate, namely, shall: (a) reopen any transaction and take an account between the parties....
Provided that in the exercise of these powers the Court shall not.. (ii) do anything whioh affects any decree of a Court other than a decree in a suit to which this Act applies which was not fully satisfied by the 1st day of January 1939.
(2) If in exercise of the powers conferred by sub section (1) the Court re-opens a decree, the Court (a) shall, after affording the parties an opportunity of being heard, pass a new decree in accordance with the provisions of this Act.
(6) Notwithstanding anything contained in any law for the time being in force: (a) the Court which in a suit to which this Act applies passed a decree which was not fully satisfied by the first day of January 1939, may exercise the powers conferred by Sub-section's (1) and (2) (ii) on an application for review of such decree made within one year of the date of the commencement of this Act ....
3. From the proviso to Section 36 (1) (a) it is clear that the preliminary and final mortgage decrees and the personal decree can be reopened if (1) they are decrees in a suit to which the Act applies and (2) if they were not fully satisfied by 1st January 1939. The first question for determination, therefore, is whether those three decrees are decrees in 'a suit to which the Act applies.' Unless there is something repugnant in the context or subject that phrase means
any suit or proceeding instituted or filed on or after the first day of January 1939, or pending on that date and includes a proceeding in execution (a) for recovery of a loan.
We quote only that portion of the definition as given in Section 2, Clause . 22 of the Act, which is relevant for the case before us. Taking the words of Section 2, Clause 22 the following appear to us to be clear, namely: (a) a suit would be a suit to which the Act would apply if it was instituted after 1st January 1939 or pending on that date: (b) although a suit for recovery of a loan had terminated before that date by the decree being passed it would still be a suit to which the Act would apply if a proceeding in connexion with that suit had been instituted after that date or was pending on that date if the scope of that proceeding was recovery of the loan.
4. The learned advocate for the appellant, while admitting the correctness of the above conclusions, contends that on the definition as it stands the proceeding for execution must either be started after 1st September 1940, when the Act came into force, or must be pending on that date. We cannot accept that contention. On this construction that Clause would read thus: 'A suit to which this Act applies means any suit or proceeding (including a proceeding in execution) instituted or filed on or after 1st January 1939 or pending on that date for (a) recovery of a loan...' As the proceedings in execution of the personal decree passed in the mortgage suit had been instituted in the case before us after 1st January 1939, the mortgage suit would be 'a suit to which the Act applies' within the meaning of Section 36, Sub-section (1) of the Act, unless the context of that Sub-section implies otherwise. The decision of the Federal Court in Bank of Commerce Ltd. v. Amulya Krishna Basu is that there is nothing in Sub-section (1) of Section 36 which would modify the definition as given in Section 2, Clause 22. The relevant passage is at p. 40 of the report and is as follows:
Among the relieving provisions the relevant Clauses are Sub-sections (1) and (2) of Section 36. Sub-section (1) gives the Court power to reopen transactions 'in any suit to which the Act applies, and, by the definition Clause this expression includes not only suits instituted after 1st day of January 1939 and suits pending on that day, but even suits already disposed of unless proceedings in execution of decrees passed therein had also been completed by that date (see also proviso (ii) to Section 36 (1)).
Eacf the three decrees--the preliminary, final and personal decree--is therefore a decree in a suit to which the Act applies.
5. The next question is as to the precise scope of proviso (ii) to Section 36 (1) (a) of the Act. The case where only one decree has been passed, or is required to be passed under the law of procedure, in a suit for recovery of money due on a loan (e. g. suit on a simple money bond) does not present any difficulty. That decree can be said to be fully satisfied only when the decretal amount or its equivalent is paid by the judgment-debtor in full or when it is realised from him in full and applied towards the decretal amount. In a mortgage suit the law of procedure requires in all cases two decrees--a preliminary decree and a final decree--and in a mortgage suit on a simple mortgage or on an English mortgage or on an anomalous mortgage which contains a covenant to pay a further decree--the personal decree--may have to be passed in some cases. The effect of the proviso is: (1) that a decree passed in a suit to which the Act does not apply cannot be reopened in exercise of the powers conferred by Sub-section (1,) Clause (a) of Section 36, and (2) that a decree passed in a suit to which the Act applies cannot be re-opened, if it had been fully satisfied by 1st January 1939.
6. A suit to which the Act applies must be 'a suit to recover a loan.' A decree in such a suit must therefore mean 'the amount decreed in such a suit' A decree in a suit to which the Act applies is, therefore, fully satisfied only when the decretal amount or its equivalent has been received by the decree-holder either amicably or through Court. The personal decree in this case was not admittedly satisfied by 1st January 1939. Form No. 8 of Sch. D, Civil P.C. on terms of which the personal decree in this case has been drawn up, states that the amount for which the personal decree is being passed is for the balance due to the plaintiff under the final decree. The final decree thus was not satisfied by 1st January 1939, as the amount mentioned in the personal decree was neither paid in full nor realized in full by 1st January 1939. It was still due on 18th May 1940, when an application for execution of the personal decree was filed and is owing even now. The amount covered by the personal decree as well as the amount of the final decree are ineluded in the amount which was declared to be due to the plaintiff under the preliminary decree and which the defendant was directed by the preliminary decree to pay to the plaintiff within the period of grace. As the amount due under the personal decree has not admittedly been paid and the final decree has not been fully satisfied, the preliminary decree cannot be said to have been fully satisfied by 1st January 1939.
7. Our conclusions therefore are: (1) that each of the three decrees in the suit is a decree to which the Act applies, and (2) that none of those three decrees was fully satisfied by 1st January 1939. Our answer to the question referred to us is in the affirmative. All the three decrees can be reopened under the powers contained in Section. 36, Bengal Moneylenders Act, so as to affect all the three. Parties are to bear their own costs in this reference.