1. The petitioners--the borrowers--executed a mortgage bond in favour of the lender--the opposite party on 26th February 1931 promising to pay interest at 12 per cent. per annum with annual rests. The borrowers paid a certain amount on account, but on 20th July 1936, a preliminary decree was passed in respect of this The final decree was passed on 13th January 1937 for Rs. 4138-12-3. It was put into execution and the mortgaged properties were sold and bought in by the decree-holder for Rs. 3150. The sale was made absolute on 12th August 1937 and possession delivered to the auction purchaser, that is the plaintiff, on 11th and 12th September 1938. On 15th July 1938, the plaintiff applied to the Court under Order 34, Rule 6, Civil P.C., asking for the decretal balance, namely, Rs. 1000. Those proceedings were stayed under Section 34, Bengal Agricultural Debtors Act, as the result of a petition by the present petitioners to the Debt Settlement Board. The result was that on 1st January 1939, there was a proceeding in execution for the recovery of the loan advanced before the commencement of the Bengal Money-Lenders Act and such loan comes within the prohibitions of the Act. The consequence is that this is a suit to which the Act applies. The present petitioners have asked for relief under the Bengal Money-Lenders Act. It is clear that the rate of interest is above the permitted rate; such interest has been paid for some time. How much has been paid beyond what is allowed by the Act it is impossible to say without an account being taken. It was therefore the duty of the learned Judge to reopen the transaction between lender and the borrowers and to take an account of what has been paid and also what ought to have been paid according to the Act, and on such reopening and taking of accounts to give the present petitioners such relief as they are entitled to under the Act. The learned Judge, however, has dealt with it rather summarily. He says:
A decree cannot be reopened simply for the purpose of making it payable in instalments. I hold that unless the judgment-debtors can satisfy me that the new decree will be for a less sum of money than that for which the decree sought to be reopened was passed, the decree cannot be reopened and a new decree passed.
2. With all respect to the learned Judge, when he saw that the rate of interest was more than 8 per cent., he should have reopened the transaction to see how much, if anything, the plaintiff had received more than she was entitled to under the provisions of the Bengal Money-Lenders Act. The result is that the matter must go back to the learned Judge for him to deal with it in accordance with the provisions of the Bengal Money-Lenders Act in the light of what I have said. The rule is made absolute. The petitioners are entitled to their costs in this rule--the hearing fee being assessed at two gold mohurs.
3. I agree.