1. This is an appeal against the judgment of Edgley J. delivered on April 4, 1941 Reported in : AIR1942Cal121 , in an application for relief under the Bengal Money-Lenders Act of 1940. The applicant was one of three persons who mortgaged certain properties to the mortgagee, Suresh Chandra Mukherjee, on 23rd March 1932. The principal amount secured was Rs. 15,000 and the rate of interest was ten per cent, per annum with quarterly rests reducible to nine per cent, if regular payments were made. Apparently payments were in arrears because on 19th February 1937, a pre. liminary mortgage decree was passed in Suit 5 No. 1146 of 1936, the plaintiff being the mortgagee Suresh Chandra Mukherjee. Pursuant to that preliminary decree, the Registrar of Original Side of this Court took an account of what was due to the plaintiff as principal and interest under the mortgage and on 7th December 1937, the Registrar reported to the Court that the total sum due for principal and interest up to 20th June 1938, would be Rs. 26,076-11-9. On 14th November 1938, the final decree was passed directing a sale of the mortgaged properties. On 30th August 1939, one of the properties was sold for Rs. 6,400. On 6th December 1939, the other two mort' gaged properties were sold also to the plaintiff for Rs. 17,000 so that in all the plaintiff brought in the mortgaged properties for the sum of Rs. 23,400. The plaintiff claimed a set-off of that amount against the amount payable under the report. In the preliminary mortgage decree it was provided:
If the money realised by such sale shall not be sufficient for payment in full of the amount payable to the plaintiff as aforesaid, the plaintiff shall be at liberty to apply for a decree against the said defendants for the amount of the balance, and that the parties are at liberty to apply to the Court from time to time as they may have occasion and on such application or otherwise the Court may give such, directions as it thinks fit.
2. It has not been seriously disputed, and in my view it is clear, that these proceedings come within the definition of a 'suit to which this Act applies' (see Section 2(22).) The applicant, one of the defendants, has asked for relief under the Bengal Money-Lenders Act in respect of his indebtedness in this transaction. He has asked that the preliminary and final decrees should be reopened and a fresh account on the mortgage security taken between the parties in accordance with the provisions of the Bengal Money-Lenders Act. It must be remembered that the rate of interest specified in the mortgage deed exceeded that permitted in the Act, namely, eight per cent. The applicant has also asked for a fresh report to be made by the Registrar on taking such account. Further, the applicant has asked that he should be at liberty to pay the amount of any new decree that may be passed in such number of instalments as the Court might think proper, and that the sale of the mortgaged properties should be set aside. The learned Judge has treated this as a review application under Order 47, Civil P.C. As I have said in a previous case, Appeal No. 86 of 1941, : AIR1943Cal169 , Kumud Behari Sen v. Satyabrata Sen in my opinion, such an application as this is not an application for review; it is an original application for relief under the Bengal Money-Lenders Act. The learned Judge has refused to reopen the transaction, to set aside the sales, and to grant the relief of payment by instalments. He has said that admittedly the proper sum payable under the Act was Rs. 24,855-12-8; that was the sum due to the decree-holder according to the provisions of the Act on the day the learned Judge heard the application. He has released the borrower from any further liability in respect of the debt, but he has declined to grant any of the further reliefs which the borrower the applicant, asked for. He has said:
The question remains as to which of the powers mentioned in Section 36(1) and (2) of the Act it will be appropriate to exercise. In the present case the sale has actually been confirmed, a considerable portion of the debt due to the decree-holder has been set off against the purchase money and the price realised at the sale of the mortgaged properties was insufficient to satisfy the dues of the decree-holder even if interest be calculated at the rate prescribed in Section 30 of the Act. In such a case I do not think it necessary to reopen the entire decree, but I consider that the ends of justice will be served by releasing the borrower of all liability as regards interest in excess of the limits specified in Section 30(1)(ii) o the Act as contemplated by Section 36(1)(c).
It was faintly argued by learned Counsel for the applicant that the exercise of this power necessarily involves the reopening of the decree in such a way as to entitle his client to the privileges enumerated in Section 36(2) of the Act. I am not prepared to accept this argument. In my view the effect of the exercise of the power conferred on the Court by Section 36 (1)(c) in this particular case will be to leave the decree intact, but at the same time the exercise of this power will result in the decree being treated as fully satisfied by writing off the amount by which the decree-holders' dues under the decree exceed the amount calculated at the rates of interest prescribed in Section 30. Admittedly, if interest be calculated at the rate of eight per cent, simple to this date, the total sum of Rs. 24,855-12-8 would be due to the decree-holder today. The debtor is therefore released from all liability to the decree-holder in excess of this amount in regard to principal and interest.
3. The learned Judge has taken the figure of Rs. 24,855-12-8 as the figure which he says was due to the decree, holder on that day. But that is not the figure in the report; it is not the figure referred to in the final decree; it is another figure, a figure which has been arrived at not by starting from the original decree figure but by starting with the amount of principal advanced and the interest which had accrued since not at the rate specified in the mortgage deed, but at the rate permitted by the Act less payments on account. In arriving at that figure, the learned Judge had of necessity to put on one side the figure mentioned in the decree and recalculate on the basis of the Act another figure which comes to Rs. 24,855-12-8. In arriving at that figure he had to take a fresh account between the parties on the basis of the Act. It seems to me that in doing so he had of necessity to reopen the transaction between the parties. Section 36(1)(a) says that the Court shall reopen any transaction and take an account between the parties. The first step is to reopen the transaction and the next to take an account between the parties. I cannot see how an account can be taken between the parties unless the transaction is reopened. As another account has been taken between the parties upon which the learned Judge has given relief it follows in my view that he has reopened the transaction, and that being so the learned Judge ought to have considered granting to the applicant the reliefs which are mentioned in Section 36. of the Act. He has not done that. In my opinion this matter must go back to a Judge on the Original Side-not necessarily the same Judge-who will deal with it in the light of the observations I have made and in accordance with the provisions of) Section 36, Bengal Money-Lenders Act. The result is that the appeal is allowed with costs.
4. I agree.