B.K. Mukherjea, J.
1. This rule is directed against an order made by the Subordinate Judge, Fourth Court, Allipore, dated 10th March 1942, rejecting an application made by the petitioner under Section 36 (6)(a)(i), Bengal Money-Lenders Act, The material facts are not in controversy and may be shortly 3tated as follows: On 3rd September 1980, the petitioner took a loan of RS. 12,500 from the opposite parties 1 and 2 as well as one Jyotish Chandra Ghose since deceased and executed in their favour a mortgage bond, stipulating to pay interest on the money advanced, at the rate of 12 per cent, per annum. Some interest was paid by the mortgagor from time to time aggregating to Hs. 4000 and in 1939 the mortgagee instituted a suit (being Title Suit No. 76 of 1939) for enforcement of the security. There was a preliminary decree passed on 29th July 1940, for a sum of Rs. 24,442 and annas odd and the decree was made final on 18th January 1941. On 1st September 1940, the Bengal < Money-Lenders Act came into force, and after the final decree was passed and before any proceeding in execution was started by the decree-holders the mortgagor presented an application by way of review under Section 36 (6)(a)(ii), Bengal Money-Lenders Act, praying that the decree might be reopened. This application was dismissed for non-appearance of the petitioner on 2nd August 1941, and on 5th August following he filed an application under Section 161, Civil P.C., praying for setting aside the order of dismissal for default. This application was rejected on 13th December 1941. In the mean time, the decree-holders put the decree into execution in Execution Case No. 42 of 1941, and thereupon the petitioner filed an application under Section 36 (6)(a)(i) Bengal Money-Lenders Act, praying that the decree might be reopened and a new decree made in accordance with the provisions of the Bengal Money-Lenders Act. This application was rejected by the Subordinate Judge by his order dated 10th March 1942, and it is against this order that the present rule has been obtained.
2. The learned Subordinate Judge has based his decision substantially on two grounds. He has held in the first place that in view of the fact that the earlier application wherein an identical relief was prayed for was dismissed for default, the present application was barred under Order 9, Rule 9, as well as Order 17, Rule 3, Civil P.C. The Subordinate Judge has held in the second place that the recital in the mortgage deed proved conclusively that the money wag advanced for commercial purposes and consequently the provisions of the Bengal Money-Lenders Act could not be attracted to the present case. The propriety of the decision on both these points has been challenged on behalf of the petitioner in this rule. So far as the first point is concerned, it will appear from what has been said above that the application for review under Section 86(6)(a)(ii), Bengal Money. Lenders Act, was dismissed for non-appearance of the applicant on 2nd August 1941. Then there was a subsequent application for having the rejected application restored to file, but that too was dismissed in December 1941. Whether a second application for review would lie under the general provisions of the Code of Civil Procedure is a question that does not arise for our consideration in the present case. For it cannot be disputed that at the time when the application for re-hearing was dismissed by the Court, more than one year had already elapsed from the date when the Bengal Money-Lenders Act came into force and consequently a second application for review under Section 36(6)(a)(ii), Bengal Money-Lenders Act, could not possibly be entertained at that time. The question for our decision however is as to whether the present application which was made not under Section 36 (6)(a)(ii) but under Clause (a)(i) of the same section and sub-section was barred under any provision of the Code of Civil Procedure.
3. Mr. H.L. Chakravarty who appears for the opposite party has conceded before us that no question of res judicata arises in the present case as nothing was heard and decided on the previous application which was dismissed for default. He argues however that Order 9, Rule 9, Civil P.C., operates as a bar to the present proceedings. We do not think that we can accept this contention as sound. In the first place Order9, Rule 9, Civil P.C., applies in terms to a suit and not to an application or miscellaneous proceeding such as comes under Section 36(6)(a), Bengal Money-Lenders Act. Mr. Chakravarty has placed reliance upon Section 141, Civil P.C., but we have considerable doubts as to whether an application for review under Section 36 (6)(a)(ii), Bengal Money-Lenders Act, can be said to be an original matter having the nature of a suit as contemplated by Section 141, Civil P.C. But even if we take it to be a proceeding in the nature of a suit we do not think that Order 9, Rule 9, Civil P.C, really helps the opposite party in the present case. What is barred under Order 9, Rule 9, Civil P.C., is the institution of a fresh suit on the same cause of action. Here the subsequent application was not the same as the previous one. It was made under a different clause of the section which eon-templates a different set of circumstances altogether. A relief could be had under Section 36(6)(a)(i) of the Act only when there is a pending proceeding in execution and it is immaterial whether one year or more has elapsed since the date when the Bengal Money-Lenders Act came into force. The application by way of review on the other hand is quite independent of any proceeding in execution and has got to be made within a specified period after the Bengal Money-Lenders Act became operative. We do not think that the two clauses provide for two alternative remedies of an inconsistent character, and it cannot be said that once a litigant has made his choice and adopted one of the alternative remedies his act operates as a bar as regards the other. It may be, as Mr. Chakravarty contends before us, that the relief to be obtained under the two clauses is practically the same. But each clause pre-scribes its own conditions which have got to be fulfilled by the litigant before he can claim any relief under that clause. If in the course of a proceeding initiated under one of these clauses a matter is heard and finally decided between the parties which is totally destructive of the right of the judgment-debtor, to proceed under the other clause something like the principle of res judicata might possibly be invoked but when nothing is decided and the application is simply dismissed for default, we do not see why it would not be] open to the judgment-debtor to proceed under the other clause provided the conditions necessary for giving relief under that clause are existent.
4. In our opinion, therefore, the order of dismissal for default made with respect to the: earlier application does not stand in the way of entertaining the present application which was filed under a different clause altogether.' Order 17, Rule 3, Civil P.C., manifestly has no application in the present case, and this point has not been pressed by Mr. H.L. Chakravarty. Assuming that this proceeding could be regarded as a suit, there were certainly no materials on the record upon which the Court could proceed to deal with the suit on its merits; and it does not appear that the Court purported to do that. An incidental observation in the order rejecting the application for adjournment that the loan was a commercial loan does not amount to a decision of the case on its merits. On the first point therefore the decision of the learned Judge cannot possibly be sustained. On the second point also we are of opinion that the Court below did not follow the right procedure. The burden of proving that the loan is a commercial loan and hence excluded from the operation of the Bengal Money. Lenders Act lies on the creditor and the explanation attached to Section 2(4), Bengal Money-Lenders Act, expressly states that the recital in a document will not be conclusive on this point. The recital in the mortgage deed was undoubtedly a piece of evidence which could be and ought to be taken against the mortgagor. But the learned Judge was in error in refusing to allow the mortgagor an opportunity to adduce evidence which he wanted to adduce for the purpose of showing that the recital was not correct. In our opinion there was an error in the procedure which has led to an apparent miscarriage of justice. The result therefore is that we make this rule absolute. We set aside the order of the trial Court and send the case back for being heard and decided on its merits. The Court will allow the parties to adduce further evidence which they wanted to adduce on the question as to whether the loan was a commercial loan or not. We make no order as to costs. Further costs will abide the result.
5. I agree.