1. This is an appeal against a new decree passed by the learned Subordinate Judge after re-opening an earlier decree under the provisions of the Bengal Money-lenders Act. The real question in the case is what is to be regarded as the principal of the loan. For determining that question the following facts are necessary : Ashutosh Chakravarti, Satish Chandra Ghakravarti and others borrowed a sum of Rs. 10,500 on a promissory note from the Bagerhat Loan Company. The said company filed a suit and obtained a decree against all the pro-missors, namely Ashutosh Chakravarti, Satish Chandra Chakravarti and others. The company however did not proceed to realise the decretal amount from the property of all the judgment-debtors. They selected one amongst them, namely Ashutosh, the father of the plaintiff appellant Indra Sekhar Chakravarti. Ashutosh satisfied the decree and thereafter brought a suit, being No. 170 of 1926 of the Court of the Subordinate Judge at Khulna, for contribution against his co-judgment-debtors. After filing that suit he applied for attachment before the judgment of the properties which belonged to one of the defendants of that suit, namely Satish. On 9th November 1926, the order for attachment was made. On 21st February 1927, that is to say, about two months after the order for attachment had been made Satish transferred his properties which were the subject-matter of the application for attachment before judgment by two kobalas, one executed in favour of Rati Kanta Haldar and the other in favour of the latter's wife Baju Bala. The conveyances are respectively Exs. A and A1. On 17th January 1928, Ashutosh obtained a decree against Satish for Rs. 4186 odd in the contribution Suit No. 170 of 1926. Thereafter, he filed an application to execute the decree against the properties in respect of which the order for attachment before judgment had been made and which as we have already stated had been transferred by Satish to Rati Kanta and his wife Raju Bala. On 13th June 1928, Rati Kanta and Raju Bala executed a mortgage in favour of Ashutosh for the sum of Rs. 4500 stipulating to pay compound interest with annual rest at the rate of Rs. 10-8-0 per year. The mortgage included as security the plots of land which Rati I Kanta and Raju Bala had purchased from Satish on 21st February 1927 by the kobalas Exs. A and A1. The recital in the mortgage is as follows:
You (Ashutosh) having put into execution the decree in Suit No. 170 of 1927? of the Court of the Subordinate Judge of Khulna in which you attached the said properties before judgment, the liability of the debt of Satish Chandra Chakravarti haa fallen on our shoulders. In order to make the said purchased properties free from all charges, we by making entreaties to you execute this deed of mortgage in your favour for the total sum of Rs. 4500 in lieu of the decretal amount, as we could not pay money in cash, as well as for our necessary expenses.
After the execution of this mortgage, Ashutosh filed an application in, the execution proceeding that he had started against Satish stating that he had received a sum of Rs. 4237 odd from Rati Kanta and Raju Bala and on that footing he entered up full satisfaction of that decree against Satish. The position therefore is that the consideration of the said mortgage was the payment of Rs. 262 odd in cash to Raju Bala and Rati Kanta and the discharge of the liability of Ashutosh's decree which was on the property which they had purchased from Satish after on the footing that the attachment before judgment was before their purchase from Satish. If there was in fact the attachment of those properties at or before the time of the purchase which Rati Kanta and Raju Bala had made from Satish the property would have been liable to be sold in execution of Ashutosh's decree in the contribution suit and by the sale the title which Rati Kanta and Raju Bala had thus obtained by their purchase would have been wiped off. That position is quite clear. If however there was in fact no attachment at or before the time when Rati Kanta and Raju Bala purchased the pro-perties from Satish their title would not have been affected at all by the execution sale and in that case there would be no consideration for the sum of Rs. 4237 odd. The position is clear.
2. In 1932, Ashutosh filed his suit (being No. 124 of 1932) on the mortgage against Rati Kanta and Raju Bala. Raju Bala did not appear in that suit but Rati Kanta did. Rati Kanta's defence was that there was no consideration for the mortgage as in fact there was no attachment on the properties which he had purchased from Satish at the time of his purchase and that the mortgage was obtained by Ashutosh from him on a false representation that he had in fact attached the properties before Satish's conveyance to him. The learned Subordinate Judge framed the following amongst other issues in that suit.
Did any consideration pass for the mortgage in question? (Issue 3). Where the lands in suit attached before judgment and are the defendants liable for the claim against Satish Chakravarti? (Issue 4). Was the mortgage in suit taken by fraud, undue influence and misrepresentation? (Issue 6).
He came to the conclusion that there was no fraud, undue influence or misrepresentation, that the properties had in fact been attached by Ashutosh before judgment before Satish conveyed the same to Rati Kanta and his wife Raju Bala. There was therefore consideration for the mortgage and the amount was what is recited in the mortgage instrument namely Rs. 4.500. He accordingly made a con-tested decree against Rati Kanta and an ex joarte decree against Raju Bala for the full amount claimed in the suit. This judgment was delivered on 28-8-1933 and the decree was drawn up in accordance with the judgment. Rati Kanta did not file any appeal against this judgment and decree and so far as he is concerned the necessary findings which form the basis of this judgment was final. Raju Bala however successfully filed an application under Order 9, Rule 13, for vacating the ex parte decree against her. The ex parte decree as against her only was vacated and the suit as against her only was ordered to be retried. She succeeded in the suit at the rehearing and a mortgage decree against her was passed on the footing that the consideration of the mortgage was Rs. 262 odd. An appeal against the decree was preferred by Ashutosh's legal representative Indra Sekhar, Ashutosh having died in the meantime, and the judgment of the learned Subordinate Judge was affirmed by this Court. This Court however in its judgment made it quite clear that so far as the decree against Rati Kanta was concerned it would remain intact. That decree which was made against Rati Kanta by the learned Subordinate Judge on 28-8-1933 was put into execution by Indra Sekhar and some execution proceedings were pending on 1-1-1939. The mortgage suit (No. 124 of 1932) would therefore be a suit to which the Bengal Money Lenders Act of 1940 would apply. Rati Kanta made an application under Section 36 of the Act, for relief. As the mortgage provided for interest at a rate in excess of 8 per cent, simple and as the decree passed against him on 28-8-1933 had exceeded Rs. 9000, Rati Kanta was entitled to relief. Interest can only be calculated whatever may be adjudged to be the principal of the loan at the rate of 8 per cent, simple and the total amount of the decree cannot be more than double the amount of the outstanding principal. Indra Sekhar anmitted in the lower Court that Rati Kanta was edtitled to those reliefs that is to say he admitted that the old decree which had been passed by the learned Subordinate Judge against Rati Kanta on 28-8-1933 will have to be re-opened and a new decree giving instalments will have to be passed on the aforesaid footing. There is no further question before us in respect of, the same but the more important question is, as was the question in the lower Court, as to what is to be taken to be the principal of the loan. We have already stated that in the mortgage the principal of the loan is stated to be Rs. 4500. Of this only Rs. 262 odd was actually advanced in cash by Ashutosh to the mortgagors and the rest represented the dues of Ashutosh under the decree which he had obtained in the contribution suit against Satish and which was paid to Ashutosh by the mortgagors on the footing the the properties in their hands which they had purchased from Satish would have been liable for the decree which Ashutosh had obtained against Satish on the ground that their purchase was effected after the attachment before judgment of those properties had been made by Ashutosh. The learned Subordinate Judge has held that inasmuch as in the proceedings started by Raju Bala it was finally held that there was in fact no attachment at the date when Rati Kanta and Raju Bala purchased the properties from Satish the real and effective consideration of the mortgage would be only Rs. 262. He has taken that to be the principal of the loan and has made his decree accordingly. We do not think that the learned Subordinate Judge is right.
3. We will have to consider the effect of the judgment which was delivered by the learned Subordinate Judge on 28-8-1933. That judgment is the final judgment as against Rati Kanta, because Rati Kanta did not prefer any appeal. Moreover in the proceedings which had been started at the instance of Raju Bala it was expressly stated that that judgment and the decree of the learned Subordinate Judge so far as it was against Rati Kanta would stand. We have already stated that all (one?) of the issues which Rati Kanta raised in the mortgage suit was whether Ashutosh had in fact attached the properties which he had purchased from Satish before his purchase. The learned Subordinate Judge held rightly or wrongly that it was in fact attached befors his purchase from Satish. He further held that the mortgage was for consideration and the amount of the consideration was Rs. 4500. The question is whether those findings can be re-opened in the proceedings started on an application under Section 36, Bengal Money Lenders Act. The case before us is not the case of a renewed bond but of an original bond. In a proceeding under Section 36 the Court has to determine what is to be the principal of the loan. That term has been defined to be the actual advance in money. Ordinarily, the principal of the loan must be taken to be what had been actually advanced but in our judgment if there has already been an adjudication between the parties as to what amount represented the principal of the loan that adjudication cannot be re-opened in proceeding for relief under Section 36, Bengal Money Lenders Act. In the case of The Bank of Commerce v. Amulya Krishna reported in the Federal Court defined the scope of Section 36(2)(a), Bengal Money Lenders Act. We quote the relevant observation which is as follows:
We do not understand Section 36(2)(a) as relegating the parties to their rights and liabilities on the original cause of action. The decree is re-opened only to the extent necessary to substitute the method of accounting sanctioned by the Act in place of the calculation on which the original decree was passed.
The case before the Federal Court no doubt was of a different type. There a decree on a promissory note had been obtained. The question was whether that decree could be re-opened under the provisions of the Bengal Money Lenders Act. The argument of the decree-holder, the Bank of Commerce Ltd., was that the provisions of Section 36, Bengal Money Lenders Act, was ultra vires of the Bengal Legislature so far as promissory notes were concerned and therefore those provisions could not be invoked for the purpose of re-opening a decree passed on a promissory note. The Federal Court in that case left the question open as to whether the Provincial Legislature could legislate on negotiable instruments, that is, on promissory notes and negotiable instruments of other kinds, but they held that the promissory note had been merged in the decree and so had no separate existence at the time when the application for relief under Section 36, Bengal Money Lenders Act had been filed. In repelling one of the arguments of the learned Counsel who was appearing for the Bank of Commerce those observations were made by the Federal Court. Those observations are, in our judgment, material for they define the scope of Section 36(2)(a), Bengal Money Lenders Act.
4. Two cases decided by this Court after that decision of the Federal Court would throw some light on the question that we have to determine, namely whether in an application under Section 36, Bengal Money Lenders Act, it is open to the judgment-debtor to ask the Court to go back upon the decision in the original judgment on issues Nos. 3, 4 and 6, which we have set out at some length in the earlier part of our judgment. The cases are Sambhu Charan v. Hrishikesh Dey ('45) 49 C.W.N. 367 and Ajaraddi v. Sonai Bibi 33 A.I.R. 1946 Cal. 65. There mortgage suits were instituted and decided before the Bengal Money Lenders Act came into force. The mortgagors pleaded that before the suit they had made some payments. That plea was overruled and the decrees were made. Those decrees, which we will designate as the original decrees were under execution on 1-1-1939 and so to the suits the Bengal Money Lenders Act, 1940, was attracted. The debtors made applications under Section 36 for re-opening the original decrees. The question was whether in the proceedings started on that application under Section 36 by the debtors for relief the question as to whether those payments had been made and which had been overruled by the judgment on the basis of which the original decrees were passed could be reconsidered. Belying on the aforesaid passage of the Federal Court's judgment in the Bank of Commerce : case Repotted in ('44) 31 A.I.R. 1944 F.C. 18 it was held that the Court was not entitled to do so. The adjudication on the question of payment as made in the original judgment was held to be final between the parties. Another illustration would be more pertinent. Suppose a person borrows a sum of Rs. 5000 on mortgage and the mortgage bond states that the amount of the loan advanced was Rs. 8000. Later on when the mortgagee institutes his Suit on the mortgage the mortgagor takes the plea that Rs. 5000 had not been advanced by way of loan but only RS. 4000, the remaining Rs. 1000 not being paid to him at all but had been retained by the mortgagee. An issue is framed on that point. The parties lead evidence. The Court disbelieves that plea of the mortgagor and comes to the conclusion that Rs. 5000 had in fact been advanced at the time of the mortgege. That is the original judgment and on the basis of that original judgment the decree follows. Later on, the mortgagor; makes an application under Section 36, Bengal Money Lenders Act for re-opening the decree and the decree is liable to be re-opened on the grounds. In that proceeding for relief under Section 86, he raises-the self-same question in another form by saying that as Rs. 4000 was the actual advance that sum and not RS. 5000, the amount which was stated in the mortgage bond, ought to be taken, as the principal for the purposes of making calculation, in terms of Section 30, Bengal Money Lenders Act. If he was allowed under that garb to have the question re-opened and re-agitated it would be relegating the parties to their rights-and liabilities on the original cause of action, and this the Federal Court has said cannot be done. Whether there was consideration for the mortgage bond so far as Rati Kanta was concerned and what was the amount of the consideration are questions which have been made conclusive by reason of the findings of the learned Subordinate Judge in the original judgment which he delivered on 28th 'August 1933. As the case before us is not the case of a renewed bond but of an original bond the principal of the loan must be taken to be what was found to be the amount of the consideration by the learned Subordinate Judge in that judgment. The result of the proceedings taken at the instance of Raju Bala has no bearing on the question. If the decision of the issues relating to the question of the consideration and its amount as given by the learned Subordinate Judge on 28th August 1933 could have in law been reopened then and then only those proceedings may have been relevant for the purpose of considering the question as to whether in fact there was attachment before Satish had sold his properties to Rati Kanta.
5. The result is that differing with the learned Subordinate Judge we hold that Rs. 4500 should be taken to be the principal of the loan. If interest is calculated from the date of the mortgage at the rate of eight per cent, simple it would far exceed double that amount. The new decree must therefore be for double that amount namely Rs. 9000. To that must be added the cost that was decreed in the decree of 28th August 1933.
6. The next question is a question of instalments. Both parties led evidence bearing upon the point. It appears to us that Rati Kanta tried to minimise his resources and Indra Sekhar to exaggerate the resources of Rati Kanta. Rati Kanta stated that he would be able to pay if 20 yearly instalments were allowed, whereas Indra Sekhar said that he would be able to pay up in five yearly instalments. After giving the matter our best consideration, we think that the amount should be paid in 12 (twelve) equal annual instalments; the first of such instalments is to be paid by chaitra 1253 B.S. and the remaining instalments within Chaitra of each succeeding year. As all the properties which had been mortgaged by Rati Kanta had been purchased by the decree-holder himself the decree would be in the first form indicated in Jadu Nath Roy v. Kshitish Chandra : AIR1945Cal177 ; that is to say, the mortgaged properties, if not already restored to Rati Kanta would forthwith be restored to him. In default of payment of anyone instalment those properties would be restored back to the decree-holder purchaser. We impose a further condition upon Rati Kanta namely that he must go on paying rent and cess regularly and in proof of payment file the chalans in the lower Court a week before they are due. In default the properties are to be restored back to the decree-holder purchaser. The arrears must be paid before the first instalment becomes due and the default clause would also attach in the case of non-payment of the arrears.
7. The cross objection is dismissed but without costs.