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Kumar Pramatha Nath Roy Vs. Jahar Lal Mukherjee - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtKolkata High Court
Decided On
Case NumberF.B. Ref. No. 1 of 1951, in A.F.O.D. No. 219 of 1946
Judge
Reported inAIR1961Cal499,65CWN273
ActsDebt Law; ;Bengal Money-Lenders Act, 1940 - Section 36 and 36(1)
AppellantKumar Pramatha Nath Roy
RespondentJahar Lal Mukherjee
Appellant AdvocateBijan Behari Das Gupta and ;Rabiranjan Das Gupta, Advs.
Respondent AdvocateApurbadhan Mukherjee and ;Samarendra Nath Banerjee, Advs.
Cases Referred and Baidyanath Dutta v. Mrityunjoy Moukherjee
Excerpt:
- p.n. mookerjee, j.1. a conflict of bench decisions in this court on the interpretation of the words 'the date of the suit', as used in the first proviso to section 36(1) of the bengal money lenders act, has given rise to the present reference. in the order of reference, which was made by mookerjee, j., sitting with my lord, the chief justice, as he then was, on august 1, 1951, the conflicting decisions have all been carefully noted, set out find analysed and the learned referring judges unequivocally expressed their preference for the view on the point, as expressed in the two decisions, reported in nrisingha chandra pal v. sm. kanaklata dasi : air1942cal369 and baidyanath dutta v. mrityunjoy mukherjee : air1944cal318 ; and openly disagreed with the other set of decisions, reported in.....
Judgment:

P.N. Mookerjee, J.

1. A conflict of Bench decisions in this Court on the interpretation of the words 'the date of the suit', as used in the first proviso to Section 36(1) of the Bengal Money Lenders Act, has given rise to the present reference. In the order of reference, which was made by Mookerjee, J., sitting with my Lord, the Chief Justice, as he then was, on August 1, 1951, the conflicting decisions have all been carefully noted, set out find analysed and the learned referring Judges unequivocally expressed their preference for the view on the point, as expressed in the two decisions, reported in Nrisingha Chandra Pal v. Sm. Kanaklata Dasi : AIR1942Cal369 and Baidyanath Dutta v. Mrityunjoy Mukherjee : AIR1944Cal318 ; and openly disagreed with the other set of decisions, reported in Jagabandhu De v. Akshoy Kumar Sil : AIR1943Cal137 ; and Baroda Prosad Sukul v. Durga Prosad Roy : AIR1945Cal320 . Two questions were then formulated by them for decision of the Full Bench in the following terms :

(1) Where a lender has obtained a decree in a suit, to which the provisions of the Bengal Money-Lenders Act, 1940, apply, and relief is prayed for in course of execution proceedings thereafter, whether the phrase 'the date of the suit', mentioned in proviso (i) to Section 36(1) or the Bengal Money-Lenders Act, is to he taken to be the date of the suit, instituted by the lender, or the date of the application for execution of the decree, passed in that suit, in which the debtor applies for relief under Section 36 of the Bengal Money-Lenders Act?

(2) Whether the Bench decisions in : AIR1943Cal137 and : AIR1945Cal320 , are correct? and, as the case before them was an Appeal from original decree, they, in accordance with the relevant Rules of this Court, referred the said questions only for decision by the Full Bench, as aforesaid. The reference has been elaborately and exhaustively argued by the learned Advocates and, in addition to the above cases, mentioned in the order of reference, the conflict wherein has necessitated the present reference they have drawn our attention to the other relevant cases on the point, namely, Mritunjoy Mitra v. Satish Chandra Banerji : AIR1944Cal193 , Barada Prasad Sukul v. Braja Gopal Basak, 55 Cal WN (3 D. R.) 149 (FB); Bank of Commerce Ltd., Khulna v. Amulya Krishna Basu and Rai Ram Taran Banerjee Bahadur v. Mrs. D. J. Hill .

2. The point is, undoubtedly, one of some difficulty, particularly in view of the language of the relevant definition section (Section 2 (22) ) but, taking the statute as a whole and reading its different sections together, including the said definition section, I am inclined to accept the view of the learned referring Judges and answer the second point in the negative and the first by affirming the correctness of the other set of decisions, referred to hereinbefore, and holding that of the two dates, mentioned therein, the date of the suit, instituted by the lender, would be 'the date of the suit,' referred to in the first proviso to Section 36(1).

3. The point raised is, no doubt, somewhat complex and difficult, -- and I would say important too, though the importance has lessened much by lapse or passage of time, -- but it does not require any long discussion. Indeed, the scope for discussion is limited, as the decision depends upon the construction of the particular phrase in the proviso in the light of a statutory definition, in the context, of course, of the other provisions of the Act. I do not, therefore, propose to enter on any long discussion in this particular case and, in my statement of facts, too, I shall be as brief as possible.

4. The appellant in this Court is the decree-holder. He obtained his decree, -- a composite mortgage decree, -- on compromise as far back as November 16, 1939. The decree was for a total sum of Rs. 244848/4/-, out of which Rs. 119424/2/- was payable by the first judgment-debtor Jahar Lal Mukherjee who is the contesting respondent in this Court, and the balance, namely, Rs. 125424/2/- was payable by the other Judgment-debtor Pannalal Mukherjee. For recovery of his aforesaid dues, the decree-holder appellant started two separate execution cases (Nos. 20 of 1942 and 18 of 1942 respectively) against the aforesaid two judgment-debtors on September 16, 1942. In each of the said two execution cases, the judgment-debtor concerned applied for relief under Section 36(6)(a)(i), read with Section 36 (1) and (2) of the Bengal Money Lenders Act, giving rise to two Misc. Cases Nos.14 and 2 respectively of 1943. Judgment-debtor Pannala1, eventually, compromised his Misc. Case No. 2, of 1943 with the decree-holder and we are no longer concerned with the same. Jahar's Misc. Case (No. 14 of 1943) proceeded to a hearing and the learned Subordinate Judge allowed the same in part, making a new decree, so tar as the applicant Jahar was concerned, for Rs. 77633/10/6, payable in ten equal instalments, commencing from September 1946. Against this decision of the learned Subordinate Judge, the decree-holder preferred the present appeal which has given rise to the instant Full Bench Reference.

5. The other relevant facts stand, in brief as follows :

(1) The loan in question originated in or with a pronote and collateral security on April 30, 1906, for Rs. 35000/- with interest at the rate of 7 per cent per annum with half yearly rests. It was renewed on April 22, 1909, on an increased rate of interest, namely, 8 per cent per annum. This was followed by a second lenewal on August 1, 1910, when there was a fresh advance, too, of Rs. 38,000/-, but the rate of interest was reduced to 7 1/2 per cent per annum. The next two renewals were on July 23, 1918 and July 19, 1916. The following renewal on July 14, 1919, was with varying rates of interest! at three stages, namely, 8 per cent per annum initially, then 9 per cent per annum and finally 10 per cent per annum. The sixth renewal which took place on July 10, 1922, was with interest at the rate of 10 per cent per annum with half-yearly rests as before. On July 7, 1925, came the next renewal for principal (Rs. 73,000/-) of the earlier renewed loan with interest at the rate of 10 per cent per annum and half-yearly rests. The eighth renewal was on March 30, 1928, for the same principal (Rs. 72000/-) and the balance outstanding interest (Rs. 11,961/7/-) and a fresh advance of Rs. 19038/9/-, totalling Rs. 1,04,000/- as principal, the stipulated interest this time being 8 1/2 per cent per annum with half-yearly rests. On February 18, 1931, the last renewal was made for the principal (Rs. 1,04,000/-) of the last renewed loan and outstanding interest at the time Rs. 16,750/13/3 p. and a fresh advance of Rs. 14,649/-, totalling Rs. 1,35,000/- as principal, with interest at the rate of 9 per cent per annum with half-yearly rests as before, but the transaction this time was one of simple mortgage instead of equitable mortgage on collateral security as theretofore. The present mortgage suit was instituted on February 8, 1939, and, as we have said above, it ended in a compromise decree, the relevant terms thereof have already been mentioned on November 11, 1939, and the present execution case (No. 20 of 1942) was filed on September 9, 1942, followed by the present Misc. Case (No. 14 of 1943) in July 1943.

and, (2) The payments from or since July 18, 1931 appear to have been Rs. 40900/- and from or since July 7, 1925, to March 30, 1928, and then to July 18, 1931, Rs. 23,692/2/9p., that is, Rs. 12692/2/9 between July 7, 1925, and March 30, 1928, and Rs. 11.000/- between March 31,1928 to July 18, 1931. The above payments are not disputed, -- at any rate, for purposes of this reference.

6. The relief, as I have said above, was claimed by the defendant judgment-debtor Jahar Lal Mukherjee under Section 36(6)(a)(i) of the Bengal Money Lenders Act and, as that relief under the very terms of that section, is to be given in accordance with Sub-sections. (1) and (2) of Section 36, the first proviso to Section 36(1) will at once come up for consideration. It is, accordingly, necessary to determine the meaning of the expression 'the date of the suit', as used in the said proviso. On this point, the learned Subordinate Judge was confronted with several conflicting decisions of this Court but be preferred to follow the view, which has appealed here to the learned Referring Judges and which also, as it appears from the learned Subordinate Judge's Judgment, was the view of the learned referring Judges in the earlier Full Bench reference (Vide 55 Cal WN (3 DR) 149), Supra On the point which, though made by this Court, was ultimately heard in the Dacca High Court, due to intervening events and change of circumstances.

7. The date of the mortgage suit (July 8, 1939) being thus the relevant date under the proviso, according to the learned Subordinate Judge, he re-opened the transaction, dated March 30, 1928, namely, the eighth renewal aforementioned, which was well within twelve years of that date, and, taking the principal, therefore, to be Rs. 73,000/- plus Rs. 19,038-9-0 (cash payments on that occasion) plus Rs. 14,649-2-9p. (cash payment on the last renewal on February 18, 1931), that is Rs. 1,06,687-11-9p. in all, he doubled the same and, then, for fixing the respondent judgment-debtor's liability, he took half the said debt and, after deducting half the intermediate payments as the respondent's share, reached the resultant figure of Rs. 74,391-10-4 1/2 p. To this, he added the costs and arrived at the net figure of Rs. 77,633-10-6p. as the final liability of the respondent judgment-debtor, for which the new decree was made by him. The learned Subordinate Judge also pointed out that, if 'the date of the suit' in the relevant proviso be taken to be the date of the relative or corresponding execution case (No. 20 of 1942), that is, September 16, 1942, then the earliest transaction that can be re-opened would be the last one, namely, the simple mortgage transaction of February 18, 1931, and, in that case, the contesting judgment-debtor's liability would be Rs. 1,14,550/-plus costs (Rs. 1,621/-) or Rs. 1,16,171/- and the original decree would be reduced roughly by Rs. 3,000/- and odd. So far, however, as these figures and calculations are concerned, we express no opinion on their correctness or otherwise, as that is not a matter, which requires any consideration or decision in this reference. The learned Subordinate Judge also overruled the decree-holder's other objections to the effect inter alia that the last renewed bond of 1931 was a loan in substance and was the relevant loan and, therefore, the court could not go behind it and that the Bengal Money-Lenders Act was ultra vires, so far as promissory notes were concerned, and so could not affect the loan to the extentthat it was incurred on promissory notes. These two points, however, are not now before us and they will be decided by the Division Bench, if they are pressed before the learned Judges there at the appropriate time, after the case goes back to that Bench upon disposal of this reference.

8. In making this reference, the referring Division Bench was concerned only with the first point before the learned Subordinate Judge, namely, the meaning of the term, 'the date of the suit' in the proviso in question and, as that alone concerns us in this reference, I will at once turn to that point for answering the two questions under reference. There can be no doubt that the suit in the above phrase refers to the suit in the main part of the section (Section 39(1) ), to which the proviso is attached, and which it seeks to restrict, regulate Or control. The suit, then, must be either a 'suit to which the Act applies' or a 'suit by the borrower under Section 36(1)', which are the two classes of suits, mentioned in the said section. Of these, we are not concerned with the second, as, obviously, the instant case is not one of a 'suit by the borrower' under the said section. We have, therefore, to consider the meaning of the term 'suit to which this (the) Act applies' for purposes of the proviso and to examine whether an execution proceeding will be or will constitute a suit for the purpose, that is, within the meaning of the said expression.

9. In Section 2(22) of the Act, 'suit to which this Act applies'' is denned in these terms :

'suit to which this Act applies' means any suit or proceeding instituted or filed on or after the 1st day of January, 1939, Or pending On that date and includes a proceeding in execution -

(a) for the recovery of a loan advanced before or after the commencement of this Act;

(b) for the enforcement of any agreement entered into before or after the commencement of this Act, whether by way of settlement of account or otherwise, or of any security so taken, in respect of any loan advanced whether before or after the commencement of this Act; or

(c) for the redemption of any security given before or after the commencement of this Act in respect of any loan advanced whether before or after the commencement of this Act.

10. The language is not very happy, but it is reasonably susceptible and capable of a construction, which will attract it to a suit or proceeding of the type or for the purposes, mentioned in Clauses (a), (b) or (c) and

(i) instituted or filed on or after January 1, 1939,

or (ii) pending on that date, or (iii) in which a proceeding in execution is instituted or filed on or after the above date or is pending on that date,

but to no others; or, in other words, that the reference to proceeding in execution in the above definition and in and under the phrase 'includes a proceeding in execution' is solely for the purpose of giving an extended meaning to the words 'suit or proceeding' in the earlier part of the definition Clause so as to include within the same not only a suit or preceding, instituted or filed on or after January 1, 1939 or pending on that date, but also a suit or proceeding, in which a proceeding in execution is instituted or filed on the said date or is pending on that date. And, that, to my mind, appears to be the true construction of the definition clause (Section 2(22)). This, indeed, was the view of the Federal Court in the case of where at p. 40 (of Cal WN) : (at p. 20 of AIR) of the report their Lordships observed as follows :

'Sub-section (1) (of Section 36) gives the Court power to reopen transactions 'in any suit to which this Act applies' and by the definition clause (Section 2(22) ) this expression includes not only suits instituted after the first day of January, 1939, and suits pending on that date, but even suits disposed of, unless proceedings in execution of decrees, passed therein had also been completed by that date', and that view is certainly binding on this Court.

11. The same view also appears in the Full Bench decision of this Court in the case of 48 Cal WN 361 (FB), supra : AIR1944Cal193 where their Lordships after referring to the relevant definition section (Section 2(22) ), observed as follows :

'Taking the words of Section 2, Clause (22), the following appear to us to be clear, namely:

(a) A suit (for recovery of a loan) would be a suit, to which the Act would apply, if it was instituted (on or) after the 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 connection with that suit had been instituted (on or) after that date or was pending on that date, it the scope of that proceeding was recovery of the loan'.

12. In the above view, with which I respectfully agree and which, as I shall show hereinafter, is the correct view in law, a proceeding in execution would not, under the definition, be a suit to which the Act applies, but its institution or pendency on or after the above relevant date would make the relative suit or original proceeding 'a suit to which this (the) Act applies.' Upon this interpretation, 'the date of the suit' in the proviso in question, so far as it is relevant here, would be the date of the lender's or creditor's suit and not the date of the execution proceeding.

13. The above interpretation would be amply supported by the scheme and structure of the Act, by its other provisions and by the context thereof. Indeed, otherwise, there would have been to necessity for Sub-clause (i) of Clause (a) of Sub-section (6) of Section 36; as Section 36(1) would have been, enough for the purpose. The language of Section 36(6)(a) is inappropriate to justify a construction that it was intended to restrict the court or the forum of relief in an execution proceeding, to be treated as a 'suit to which this (the) Act applies' and thus a relevant proceeding for the purpose of such relief under Section 36(1) itself. That section (Section 36(6)(a) ) is, plainly, an enabling one and it is, obviously, meant to provide other proceedings for purposed of the aforesaid relief, namely, execution and review in addition to the suits, referred to in Section 36(1), though, of course, entitling or enabling only the court, which passed the decree, to exercise the necessary powers of relief. This view receives all necessary support from the decision of the Federal Court, again, in the case of where, at p. 84 of the Report (SCR (Cal W N) ) : (at Pp. 138-139), Mahajan, J. delivering the leading judgment of the Court, observed as follows :

'Sub-section (6) of Section 36 provides a summary and an alternative remedy regarding decrees passed but not satisfied by 1st January, 1939. Instead of a resort to a regular suit, in such cases relief can be claimed in execution or by preferring a review within one year or by raising the question before the Court of appeal, if an appeal is pending'.

14. In the face of this Federal Court decision, it would be difficult to accept the argument that Clause (a) of Section 36(6) was intended only to indicate the forum and to restrict it to a particular court and that argument would, also, clearly be contradicted by Sub-clause (ii) as, in the case of review of decrees, no court other than the Court which passed the decree can be of any relevance and, therefore, there will be no necessity of any restrictive or indicative provision as above. And, if the aforesaid argument be not available, Section 36(6)(a)(i) would, obviously, be either redundant or repugnant to or in conflict with Section 36(1) of the Act, if execution proceeding has to be regarded as a 'suit to which this (the) Act applies' under that Sub-section and, as it is a cardinal and elementary rule of interpretation of statutory provisions that both redundancy and repugnancy or conflict or inconsistency with the other provisions of the Act should be avoided, the above interpretation of the term 'suit to which this (the) Act applies' cannot be accepted for purposes of Section 36(1) and, necessarily, then, for the purpose of its proviso (1) too. So far, therefore, as Section 36(1) is concerned,--and the connected Sub-section (6) (a) of the section,--a proceeding in execution would not itself be a 'suit to which this (the) Act applies' and this will be so even if the definition (vide Section 2(22) ), standing by itself, may suggest the contrary,--though, as seen above, that suggestion would not be quite correct,--and the above interpretation of the term for purposes of Section 36(1) or Sub-section 36(6) would not conflict with the definition section which opens with the reservation clause 'unless there is anything repugnant in the subject or context', the context to the contrary or the repugnancy in the subject or context being, if necessary, clearly, furnished or indicated by the above discussion of the correlation of Section 36(1) and Section 36(6)(a)(i).

15. It is to be noted also that if, as held above, Section 36(6)(a)(i) is the only provision for granting relief in execution proceeding, the date of the 'suit to which the Act applies' must, for such purposes, necessarily refer to the date of the ordinal suit and not to the date of the execution proceeding. This is clear enough from the section itself which speaks of the Court which, in a suit to which the Act applies passed a decree, thus obviously contemplating a suit in which a decree is passed. An execution proceeding will not be such a suit as in such a proceeding no decree is passed. An execution proceeding, therefore, would not answer the description of a ''suit to which the Act applies' for purposes of Section 36(6)(a)(i) and the date of the execution proceeding would not be the date of such a suit for the aforesaid purposes. It thus follows that for purposes of Section 36(6)(a)(i) of the Act,--and necessarily therefore for purposes of proviso (i) to Section 36(1) when the same has to be applied for purposes of the said section (Section 36(6)(a)(i) ), -- the date of the suit to which the Act applies would be date of the original suit and not the date of the execution proceeding and this will be so notwithstanding the definition Section which, as explained above, will raise no real conflict on the point.

16. I would, accordingly, hold that the date of the suit in the first proviso to Section 36(1) would mean the date of the lender's or creditor's (original) suit as distinguished from the date of the execution proceeding and I would answer the first point under reference accordingly and the second i' the negative as a necessary corollary.

17. In the Dacca Full Bench case (55 Cal WN (3 DR) 149, supra), the same view was taken on the point and I have given my own reasons for coming to the same conclusion. In the case of : AIR1943Cal137 , Roxburgh, J. who delivered the judgment of the Court (Roxburgh and Blank, JJ.), endorsing the contrary view, felt the difficulty of explaining or explaining away Section 36(6)(a), but he left. It there without resolving its conflict with Section 36(1) or answering the argument of its redundancy upon the view of the particular phrase, taken by him, but as I have said above, that would be contrary to accepted rules of interpretation. Baroda Prasad Sukul's case : AIR1945Cal320 merely followed the decision in : AIR1943Cal137 . I have, therefore, rejected those decisions and, on my reasons, already given, I would accept and affirm the decision in : AIR1944Cal318 , and : AIR1942Cal369 , which latter case, though not very explicit on the point, so far as the report or the judgment goes by itself, did really proceed upon the same view of law as in : AIR1944Cal318 , as I have found upon an examination of its records.

18. I would, therefore, answer the two questions, referred to us, as follows :

Q. 1 : The date of the lender's or creditor's mortgage suit.

Q. 2: No adding the rider that the other set of cases,namely : AIR1942Cal369 ; and Baidyanath Dutta v. Mrityunjoy Moukherjee : AIR1944Cal318 , were correctly decided, and, as my Lords agree with me, the above answers would be the answers of this Full Bench to the points under reference.

19. With the above answers, the case would now go back to the Division Bench for further hearing and final disposal of the connected appeal.

20. Costs of the Reference will abide the final result of the appeal, hearing-fee being assessed at ten gold-mohurs.

Bachawat, J.

21. By proviso (i) to Section 36(1) of the Bengal Money-Lenders Act, 1940, the Court is forbidden to re-open adjustments entered into more than twelve years prior to the date of the suit. In this case the suit to enforce the mortgage was instituted against two borrowers on February 8, 1939. The suit was decreed on compromise on November 16, 1939. Two separate execution cases were started against the two judgment-debtors on September 16, 1942. The two judgment-debtors separately applied for relief under the Bengal Money-Lenders Act in January and February, 1943. We are now concerned with the application made by the judgment-debtor Jaharlal Mukherjee. He seeks to re-open inter alia a handnote executed on March 30, 1928. The question is from what date the twelve years period mentioned in the proviso (i) to Section 36(1) is to be counted; is that date February 8, 1939 or is it September 16, 1942? Does the phrase, 'the date of the suit', mentioned in that proviso mean the date of the institution of the suit, or does it mean the date of the application for execution ?

22. Section 2(22) defines 'a suit to which tills Act applies'. Having regard to this definition, the suit in which the compromise decree was passed is a suit to which the Act applies. By, Section 2(22) a suit to which the Act applies includes a proceeding in execution. By Section 36(6)(a)(i) the court which passed a decree in a suit to which the Act applies can grant relief in a proceeding in execution. Now for purposes of Section 36(6)(a)(i) a suit to which the Act applies must be a suit in which a decree capable of execution has been passed. A proceeding in execution is not such a suit, for a decree capable of execution cannot be passed in such a proceeding. A proceeding in execution cannot therefore be regarded as a suit to which the Act applies, for purposes of Section 36(6)(a)(i). Consequently when the court acting under Section 36(6)(a)(i) exercises the powers conferred by Section 36(1) in a proceeding in execution of a decree passed in a suit to which the Act applies, the date of the suit contemplated by the proviso (i) to Section 36(1) must mean the date of the suit in which the decree under execution was passed, and not the date of the application for execution.

23. Where a decree has been passed in a suit to which the Act applies, the borrower can obtain relief under Section 36(1) by filing a regular suit for relief. The borrower cannot ask for relief under Section 36(1) in a proceeding in execution; he can ask for relief in a proceeding in execution by recourse to Section 36(6)(a)(i) only. Section 36(6)(a)(i) provides for a special alternative remedy in a proceeding in execution. Relief can be given in a proceeding in execution under Section 36(6)(a)(i) only by the court which passed the decree. If relief could be granted under Section 36(1) in a proceeding in execution, not only the court which passed the decree but also the court to which the decree was transferred for execution could grant the relief; but such a construction of Section 36(1) is plainly repugnant to Section 36(1). Sub-section (1) and (6) of Section 39 read together show that the borrower can ask for relief under Section 36(1) in a suit by the lender which is pending and in which no decree has been passed and that where a decree has been passed in the suit, he may obtain relief either under Section 36(1) by filing a suit for relief or under Section 36 (6) by pursuing the alternative remedies provided thereby. In , Mahajan J., observed :

'Sub-section (6) of Section 36 provides a summary and an alternative remedy regarding decrees passed but not satisfied by 1st January, 1939. Instead of a resort to a regular suit, in such cases relief can be claimed in execution or by preferring a review within one year or by raising the question before the Court of appeal, if an appeal is pending'.

24. It is plain therefore that the court can grant relief in a proceeding in execution under Section 36(6)(a)(i) only, and that in such a case the date of the suit referred to in proviso (i) to Section 36(1) means the date of the institution of the suit in which the decree under execution was passed.

25. By Sections 2(21) and 2(22) a suit to which the Act applies includes a proceeding in execution and By way of appeal. The inclusive definition extends the meaning of a suit to which this Act applies by including within its ambit, proceedings in execution and by way of appeal arising out of the suit in which a decree has been passed; nevertheless when relief is given under Section 36(6) the date of the suit contemplated by proviso (i) to Section 36(1) is the date of the institution of the suit in which the decree was passed and not the date of the institution of the appeal or tile proceeding in execution.

26. Section 2(22) refers to a 'suit or proceeding'. The proceeding referred to is an original proceeding in the nature of a suit. The word 'suit' ordinarily means a proceeding instituted by the presentation of a plaint. But there may be a proceeding in the nature of a suit instituted otherwise than by the presentation of a plaint. Such a proceeding is a suit in substance, though not in form. The expression 'suit or proceeding' comprehensively refers to a suit whatever its form may be. This is made plain by the provisions of Sections 36(3) and 36(4). The suit to which this Act applies therefore means a suit whatever its form may be for the recovery of a loan or for the enforcement of an agreement orsecurity, in respect of a loan or for the redemption of the security instituted or filed on or after the 1st of January, 1939 or pending on that date. If the suit is in form a proceeding in the nature of a suit the final order passed in the proceeding is regarded as a decree; and by Section 36(6)(a)(i) the court which passed the decree can grant relief in a proceeding in execution of the decree, and in such a case the date of the institution of the original proceeding is regarded as the date of the suit for purposes of the proviso (i) to Section 36(1).

27. I am therefore of the opinion that where a borrower asks for relief in a proceeding in execution of a decree passed in a suit instituted by a lender to which the Bengal Money-Lenders Act, 1940 applies the expression 'the date of the suit' in proviso (i) to Section 36(1) refers to the date of the institution of the suit by the lender and not the date of the application for execution.

28. For the reasons given above I agree with the decision in : AIR1944Cal318 and I am unable to agree with the decisions in : AIR1943Cal137 and : AIR1945Cal320 .

29. I agree with the order proposed by my learned brother P. N. Mookerjee, J.

Lahiri, C.J.

30. I have had the advantage of reading the judgment written by P. N. Mookerjee, J. and Bachawat, J. and I agree with the conclusions reached in both the judgments.


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