Nasim Ali, J.
1. The appellant obtained a decree for money against the respondents on the basis of a promissory note executed by the respondents in favour of the appellant. The appellant put this decree into execution on 24th January 1939. The Bengal Money-Lenders Act, came into force on 1st September 1940. On 6th November 1940, some immovable properties belonging to the respondents were sold in execution of the decree and were purchased by the appellant. The purchase money and the amount due on the decree were then set off against one another under Order 21, Rule 72, Clause (2), Civil P.C. and the executing Court entered up satisfaction of the decree in whole as the purchase money was equal to the amount due on the decree. The judgment-debtors then made an application for setting aside the sale under Order 21, Rule 90, Civil P.C. While this application was pending he made another application under Section 34(1)(b), Bengal Money. Lenders Act, praying that he might be allowed to pay off the decretal amount by instalments. This application was opposed by the appellant. One of the objections of the appellant to this application was that the application was not maintainable inasmuch as the decree had already been satisfied. The trial Court gave effect to this preliminary objection and dismissed the respondents' application under the Bengal Money-Lenders Act. The respondents then appealed to the lower appellate Court. The learned District Judge has held that this application is maintainable. He has accordingly set aside the order of the trial Judge dismissing the application and remanded the case to the trial Court for decision on the merits. The present appeal is against this order of remand by the lower appellate Court. The relevant portion of Section 34(1)(b) is this:
In suits in respect of loans advanced before the commencement of this Act other than those referred to in Clause (a)...(ii) on the application of a judgment-debtor against whom a decree in such suit has been passed whether before or after the commencement of this Act and after notice to the decree-holder, order, at any time after the decree has been passed, that the amount of the decree shall, subject to such conditions as the Court may impose, be payable without interest in such number of annual instalments, on such dates and within such period not exceeding 20 years as the Court thinks fit having regard to the circumstances of the plaintiff and the defendant or the decree-holder and the judgment-debtor and the amount of the decree and that, if default is made in making payment of any instalment, that instalment and not the whole of the decretal amount shall be recoverable; (c) during the pendency of any inquiry under Sub-clause (ii) of Clause (b) order, subject to such conditions as the Court may impose, the stay of execution of the decree.
2. From the facts stated above, it is clear that the respondents could apply for instalments under Section 34(1)(b), Bengal Money-Lenders Act, before their property was sold and was purchased by the decree-holder. They, however, did not do so. Section 34(1)(b) directs the Court on the application of a judgment-debtor to order at any time after the decree has been passed that the amount of the decree shall be paid by instalments after notice to the decree-holder only and not to the auction purchaser. This section further directs the Court to stay the execution of the decree pending the decision as to whether the decretal amount shall be ordered to-be paid by the judgment-debtor by instalments and, if so, by how many instalments. The exercise of the power of the Court under this section, therefore, presupposes the existence of a subsisting decree. If the decree has already been satisfied, the question of payment of the decree by instalments cannot possibly arise. In this case before the judgment-debtors made their application under Section 34(1)(b) the purchase money and the amount due on the decree being equal were set off against one another under Order 21, Rule 72, Clause (2), Civil P.C. and the executing Court entered up such satisfaction of the decree in full. At the time of the respondents' application there was no subsisting decree. It may be that if the sale be set aside later on, under Order 21, Rule 90, Civil P.C., the order of the executing Court entering up satisfaction of the decree will automatically be vacated and the decree would be revived. On the happening of such a contingency, it would be open to the judgment debtors to make an application for relief under Section 34(1)(b), Bengal Money-Lenders Act. He cannot, however, get any relief under this Act so long as the order of the executing Court entering up satisfaction of the decree in full remains in force. The result, therefore, is that this appeal is allowed. The order of the District Judge is set aside and that of the Subordinate Judge restored with costs throughout. The hearing-fee is assessed at two gold mohurs.
3. Section 34(1)(b), Bengal Money-Lenders Act, does not empower any Court to take away from a decree-holder any fruits of his decree which he may have gathered before its aid is invoked; moreover, a stay of execution under Clause (c) of the subsection is a condition precedent to relief under Clause (b)(ii), and a process which has already ended cannot be stayed. Therefore, in spite of the use in the last mentioned clause of the words 'at any time after the decree has been passed,' I think it clear that if and in so far as a decree has been finally satisfied an application under Clause (b)(ii) will not lie. But when is a decree 'finally' satisfied for this purpose? I appreciate the force of the argument founded on Order 21, Rule 72(2), Civil P.C. by which the Court is expressly directed to 'enter up satisfaction of the decree' on the happening of an event which has here happened. But, as such satisfaction may yet be undone if the sale is set aside, it still seems to me a nice question whether it is, for this purpose, 'final' - in other words, whether the decree should be regarded as dead (but capable of resurrection) or merely dormant.
4. Apart from the decision under a somewhat similar statute in Krishnarao Shankarrao v. Bhanu Govinda ('38) 1938-21 N.L.J. 15 two considerations, in my opinion, turn the scale in favour of the former view. One is the grossly penal character of Section 34 (1)(b)(ii). The Court is thereby compelled to order payment by 'annual instalments' which, means keeping a man waiting for payment of his just debt for at least a year and a day, even though the debtor might be well able to pay the whole debt forthwith. We should not give to such a provision a wider effect than we must. The other is that it is a mere accident that the decree-holder is here himself the purchaser. It may be true that the order of the District Judge could not do him any greater injustice than that which the Legislature intended, and might be a benefit hereafter to the judgment-debtor. But considerable difficulty would arise if, where (as in the Nagpur case) a third party had purchased, a stay under Sub-section (1)(c) could be granted - behind his back - between the sale and its confirmation. We ought not, if it can be avoided so to construe the Act as to permit such a difficulty. I concur, therefore, in the result namely that this appeal should be allowed.