1. This case arises out of an application made by a judgment-debtor under Clause (a)(ii) of Section 36(6), Bengal Money-lenders Act, in respect of a preliminary mortgage-decree. The petitioner before us is not the original borrower, but a purchaser from him of the equity of redemption in the mortgaged property, and it is sufficient to state that on the authority of the decision in Sailendra Nath v. Amarendra Nath : AIR1941Cal484 , he will be deemed to be a 'borrower' within the meaning of the Act as defined in Section 2(22). The loan here was for a sum of Rs. 9000 which one Rahim Bux had borrowed from the opposite party on mortgage, agreeing to pay interest at the rate of 15 per cent. per annum. On 6th September 1938, the opposite party instituted a suit to enforce the mortgage, making the petitioner as well as Rahim Bux party defendant, and on 30th March 1940, he recovered against them both a preliminary mortgage decree for a total sum of Rupees 19,951-15-0, which included a sum of Rs. 9000 on account of principal, Rs. 9454-8-0 on account of interest and the balance as costs. On the Bengal Money-lenders Act then coming into force, the petitioner made the present application to the learned Subordinate Judge of Howrah who had passed the decree, asking for relief under various sections of the Act, namely, Sections 30, 81, 34 and 36. It was not disputed that the interest allowed by the decree was in excess of the limits specified in Section 30. What the learned Subordinate a Judge did accordingly was to write down the amount payable under the decree, so as to bring it within those limits, but he refused to 're-open' the decree under Section 36(2) and grant any further reliefs, such as the grant of instalments in respect of the amount to which the decree was so written down. It is the propriety of this decision that is challenged before us.
2. The petitioner filed an appeal as well as an application under Section 115, Civil P.C, against the order of the learned Subordinate Judge which was passed on 22nd February 1941. In view of the decision in Promode Nath v. Raseshwari : AIR1941Cal530 , the appeal has not been pressed, and in our opinion, it must be dismissed as incompetent. It was held in that ease that where on an application under Section 36 (6) the Court refuses to re-open a decree, the order is non-appealable, whether it is made under Sub-clause (i) or Sub-clause (ii). The Bengal Moneylenders Act certainly confers no right of appeal against such an order, and in so far as the order is made under Sub-clause (ii), an appeal would be expressly barred by the pro-visions of Rule 7(1) of Order 47, Civil P.C., treating the application as one for review under the Code. That being so, we can deal with the matter only in our revisional jurisdiction. Coming to the question which was actually canvassed in this case, it should be perhaps sufficient to state that the point is now covered by authority. The learned Subordinate Judge here seems to have followed the decision of Edgley J., in Suresh Chandra v. Lal Mohan : AIR1942Cal121 and Manmatha Nath v. Renula : AIR1941Cal681 , though he does not mention any of these cases in his order. The view expressed by Edgley J., has, however, been expressly dissented from by Sen J., in Mritunjoy v. Netai Chand : AIR1942Cal123 , and Juggannath v. Madan Mohan : AIR1942Cal125 , and there is also a decision of a Division Bench which in effect overrules Edgley J.: Anath Nath v. Rajendra Nath : AIR1942Cal120 . For ourselves, we are inclined to agree with the view expressed in these later cases.
3. The question is, what did the Legislature mean by the words in Sub-section (2) of Section 36: 'If in exercise of the powers conferred by Sub-section (1), the Court re-opens a decree?' Sub-section (1) itself says nothing about 're-opening a decree:' it refers to the re-opening of transactions and the re-opening of accounts, and in proviso (2), it forbids the doing of anything which ''affects' any decree of a Court other than a decree of the kind indicated therein. That would seem to suggest that the Legislature intended that in giving relief in exercise of the powers under Sub-section (1), it should be possible in some cases to 'affect' a decree, and that in such cases only Sub-section (2) should apply. The interpretation would perhaps have been easier, if, therefore, instead of the expression 're-opens a decree,' Sub-section (2) had used the words of proviso (2) to Sub-section (1) and said, 'does anything which affects a decree.' We are not unmindful that such an interpretation might lead to the unnecessary and somewhat anomalous result that in some cases the Court shall be required to pass a new decree under Clause (a) of Sub-section (2) where it will be futile to do so. For example, if a borrower is sued on a bond given in satisfaction of a liability arising out of a decree of the kind which may be 'affected' under the terms of proviso (2) to Sub-section (1), it should be possible to give him all the relief he can conceivably ask for under the Act, in connexion with the decree passed in the very suit which is brought on the bond, and there ought not to be any question of passing a new decree in the place of the prior decree which ex hypothesi was satisfied by the execution of the bond. And still on the interpretation we have suggested above, it should be necessary for the Court to pass a new decree in respect of such satisfied liability, because the old decree was being 'affected.'
4. On the other hand, it seems to us that if we were to hold that the words 're-opens a decree' in Sub-section (2) only mean re-opening a decree in the sense in which, for example, a decree is re-opened in review, that would involve a tautology, and merely amount to saying that if the Court 're-opens' or remakes a decree, it shall re-open or re-make the decree in a certain way, but in that ease the Sub-section will have given no indication as to when it should apply and when it should not. It is not necessary, however, for the purposes of the present case to pursue the matter further, for, the application here was made for review of the decree in question under Sub-clause (ii) of Clause (a) of Section 36(6), and if relief is given by way of review, then that procedure itself must ipso facto involve a 're-opening' of the decree in any sense of the term. That being so, the learned Subordinate Judge was, in our Opinion, bound to pass a 'new decree' in accordance with the provisions of the Act under the terms of Clause (a) of Sub-section (2). The order of the Court below must, therefore, be set aside, and the case remitted to him in order that he may dispose of it in accordance with law. The result is that the appeal is dismissed, but the application under Section 115, Civil P.C, is allowed. We make no order as to costs in either the appeal or the application. The stay Rule 779M of 1941 is discharged.
5. I agree.