B.K. Mukherjea, J.
1. This appeal is directed against the appellate decision of Mr. S.K. Haldar, District Judge of Khulna, affirming an order of the Additional Subordinate Judge of that place, made on an application presented by the respondents under Sections 34 and 86, Bengal Money-Lenders Act, 1940. The appellant, Prabhabati Mitra, had advanced a sum of 1500 to the respondents who were and are still minors on a mortgage of their ancestral dwelling house, and the mortgage bond was executed on their behalf by their mother Benodini Dasi. The mortgagee commenced a suit to enforce the mortgage bond some time in 1936. This litigation had a chequered career, and eventually a money decree was passed in favour of the plaintiff against the respondents for a sum of Rs. 2025 together with costs amounting to about Rs. 713 odd. This decree was put into execution, and the only property of the minors which was their residential house in the town of Khulna was attached and sold for a sum of Rs. 2000 only. The purchaser was the decree holder herself, and she was allowed to set off the purchase money against the decretal dues under Order 21, Rule 72(2), Civil P.C. Before the sale was confirmed, the judgment-debtors commenced the present proceeding claiming reliefs under Sections 34 and 36, Bengal Money-Lenders Act. The decree-holder resisted the application primarily on the ground that the loan was a commercial loan, and, consequently, the provisions of the Bengal-Money Lenders Act were not attracted to this case. The trial Judge negatived this contention, but he was of opinion that Section 36, Bengal Money-Lenders Act, was not available to the judgment-debtors inasmuch as the new decree would be for a sum larger than that for which the original decree was made. He held, however, that the respondents were entitled to claim relief under Section 34(1)(b), Bengal Money.Lenders Act, and he made an order directing that the decretal amount should be paid in 15 yearly instalments. On appeal, the District Judge of Khulna affirmed this decision. The decree-holder has now come on appeal to this Court. Mr. Das who appears for the appellant has put forward a twofold contention in support of the appeal. He has argued, in the first place, that Section 34(1)(b), Bengal Money-Lenders Act, is not applicable to the present case inasmuch as the application under that section was presented by the judgment-debtors after their property was sold, and the decree, holder was allowed set-off under Order 21, Rule 72(2), Civil P.C. His second argument is that in arriving at the finding that the loan was not a commercial loan, the Courts below went beyond the decision in the mortgage suit itself which is conclusive between the parties.
2. Now, so far as the first point is concerned, the language of Section 34(1)(b), Bengal Money-Lenders Act, is certainly very wide, and it empowers the Court on the application of the judgment-debtor and on giving notice to the decree-holder to order at any time after the decree has been passed that the amount of the decree shall be paid by instalments. It has been held by a Division Bench of this Court in Radhikalal v. Jitendra Nath ('43) 30 A.I.R. Cal. 458, that the exercise of the powers under this section contemplates the existence of a subsisting decree, and if the decree had already been satisfied before the application is made no relief could be given to the judgment-debtor. I may say that I am in entire agreement with this decision, and the reasons given by the learned Judges in support thereof. The present case however is not directly covered by this authority. The decree here was not entirely satisfied, and there was an unsatisfied decree still in existence. But, I agree with Blagden J. that there is nothing in Section 34(1)(b), Bengal Money-Lenders Act, which enables the Court to take away from the decree-holder the fruits of the decre which he had gathered already prior to the application being made under the section. The sale that has already taken place, and the decree to the extent that it was already satisfied cannot, therefore, be touched. Mr. Das stated to us that his client has given up his claim to the unsatisfied balance of the decree, and consequently, it is not necessary for the judgment-debtor to claim relief in respect of that portion of the decree which is still unsatisfied. In my opinion, therefore, the first contention of Mr. Das is a sound one, and mast prevail.
3. The second contention raised by Mr. Das does not appear to be of much substance. It is true that in the mortgage suit there was a finding arrived at by the lower appellate Court which was affirmed on appeal by this Court, that the money was taken for improving the stationery shop which belonged to the minors and their brother, but the whole point for decision in that suit was a to whether there was any legal necessity for the loan which would be binding on the minors. The Court held that the recitals in the mortgage bond were not conclusive on that point, and it was open to the mortgagee to show by other evidence that there was legal necessity of a character different from that recited in the mortgage bond itself. Commercial loan is defined in the Bengal Money-Lenders Act as money advanced to a person to be used by him solely for purposes of trade, business, etc. The question was certainly not investigated with an eye to this definition, and I am unable to say that the finding arrived at in the mortgage suit is conclusive for purposes of the present proceeding.
4. But though, in my opinion, the Courts below were not right in allowing the judgment-debtors relief under Section 34(1)(b), Bengal Money-Lenders Act, I think that the other question, namely, as to whether the decree could be re-opened under Section 36 of the Act has not been properly considered by the Courts below. If the decree that was made allowed interest in excess of what is allowed by Section 30, Money-Lenders Act, prima facie, it can and ought to be re-opened if the other conditions laid down in that section are complied with. It is immaterial that if calculation be now made, the new decree would be for a sum in excess of what was allowed by the original decree. This is not re-opening a decree merely for granting instalments, but for releasing the judgment-debtor of a liability in excess of what could be imposed under Section 30 of the Act. The result therefore is that, in my opinion, the appeal should be allowed in part. The order of the Courts below granting instalments to the judgment-debtors on the basis of Section 30(1)(b), Bengal Money-Lenders Act, is set aside and the case is sent back to the Court of appeal below in order that it may consider as to whether or not the judgment-debtors are entitled to any relief under Section 36, Bengal Money. Lenders Act. We make no order as to costs in this Court.
5. I agree that this appeal should be allowed and I concur in the order proposed by my learned brother. The original loan was taken on 9th Falgoon 1339 B.S. corresponding to 21st February 1933, and the principal sum advanced was Rs. 1500. The suit for the realisation of this loan, we are told, was instituted in February 1936, and was decreed for Rs. 2025 on 21st December 1938. Admittedly, nothing on account of this loan had been paid by the borrowers. Interest on the principal sum adjudged from the date of the suit to the date of the decree is left at the discretion of the Court by Section 34, Civil P.C. It appears that in this case no interest for this period was decreed by the Court. The interest decreed was thus Rs. 525 on the principal sum of Rs. 1500 for the period of 3 years prior to the institution of the suit from the date of the loan (21st February 1933) to the date of the suit.
6. As has been stated above, the decree was passed before the Bengal Money-Lenders Act, 1940, came into force. It was put into execution and certain immovable property belonging to the judgment-debtors was put to sale and was purchased by the decree-holder himself. The Bengal Money-Lenders Act, 1940, came into force on 1st September 1940, and thereafter the judgment-debtors made the present application claiming reliefs under Sections 34 and 36 of the Act. This application was opposed by the decree-holder on the following amongst other grounds : (1) That the loan in question was a commercial loan within the meaning of the Act and consequently the Act had no application to the case; (a) That assuming that the Act applied to the case, (a) no relief under Section 36 of the Act was available : (i) as the liability imposed by the decree did not in any way contravene the provisions of Section 30 of the Act and (ii) as the exercise of the powers under the section would not give any relief to the borrower; (b) no relief under Section 34 of the Act was available in view of the fact that the decree was already realised by the sale of the property. The Court of first instance held : (1) That the loan was not a commercial loan; (2) But that the borrower was not entitled to any relief under Section 36 of the Act inasmuch as if the decree be reopened the amount of the new decree would exceed the amount of the decree reopened. It however held that Section 34(1)(b) of the Act was applicable to the case in spite of the auction sale and made an order under that section to the effect that the amount of the decree should be payable without interest in 15 annual instalments as specified by that order. On appeal by the decree-holder from this order, the learned District Judge upheld this order holding that the loan was not a commercial loan within the meaning of the Act and that Section 34(1)(b) was applicable even though the decree was realised by the attachment and sale of the property of the judgment-debtor.
7. Mr. Das appearing for the decree, holder appellant, contends : (1) That the decision in S.A. No. 1387 of 1939 of this Court : Anil Kumar Das v. Probhabati Mitra : AIR1940Cal532 , a operates as 'resjudicata' as regards the question whether or not the loan in this case was 'advanced to be used solely for the purpose of any business or concern relating to trade etc.,' within the meaning of Section 2(4) of the Act, and that consequently in view of that decision the loan in this case must be held to be a commercial loan within the meaning of the Act. (2) That even assuming that the loan is not a commercial loan within the meaning of the Act, Section 34(1)(b) of the Act has no application to a decree already executed and that this section does not authorise any relief affecting any realisation of the decretal dues by the decree-holder. In support of his second contention, Mr. Das relies on Radhikalal v. Jitendra Nath : AIR1943Cal458 (Nasim Ali and Blagden JJ.). Mr. Ghoae for the respondents, contends: (1) That the decision in Anil Kumar Das v. Probhabati Mitra : AIR1940Cal532 cannot operate as res judicata in this case and that the finding that the loan in the present case was not a commercial loan is a finding of fact based on evidence on the record and consequently cannot be disturbed on second appeal. (2) That Section 34(1)(b) of the Act, is wide enough to include a case like the present. (3) That, in any case, as the interest included in the decree imposed the liability to pay interest at rates per annum exceeding ten per centum simple, the decree should be reopened in exercise of the powers under Section 36(1) of the Act, and the judgment, debtor should be given reliefs in terms of Section 36(2)(a), (d) and (e) of the Act. We are unable to accept the first contention of Mr. Das. Section 2(4) of the Act, defines 'commercial loan' as meaning a loan advanced to any person to be used by such person solely for the purpose of any business or concern relating to trade, commerce, industry, etc.
8. In the previous suit the question whether the loan was a commercial loan or not did not at all arise for decision. Even the purpose for which the loan was advanced was not directly and substantially in issue in that suit. 'The matter for consideration in that suit was whether the plaintiff in advancing the loan had made proper enquiries and had satisfied herself that there was legal necessity for the loan. It was found that money was needed for the efficient conduct of the stationery business of the minor defendants and that it was borrowed by their guardian to improve the finances of that business. The matter that falls to be considered in deciding whether or not the loan is a commercial loan within the meaning of the Act was thus neither directly and substantially in issue in the previous suit, nor decided in it. The Courts below on a consideration of all the relevant evidence on the point came to the finding that the loan was not a commercial loan. Nothing else could be urged against this finding, and I see no reason to disturb this finding of fact. The second contention of Mr. Das however is of much substance, and must be given effect to. Section 34(1)(b)(ii) of the Act, enjoins the Court to
order...that the amount of the decree shall...be payable...in such number of annual instalments...as the Court thinks fit....
9. Obviously this contemplates only a case where the amount of the decree is still payable. It cannot apply to a case where the amount of the decree has already been realised and thus has ceased to be payable any longer. In a case where the amount of the decree is realised or paid in part, an order under the section may be made in respect of the part still remaining payable. But I do not see how the section can be resorted to make that payable, and payable in instalments, which has already ceased to be payable, being either paid or realised by any process. The section does not impose 'payability' on any amount. It only deals with what is already 'payable' and makes it payable in instalments. This, in my opinion, is the just and true meaning of the statute and I believe this construction cannot be characterised as a 'subtle and sinister thing' by which 'the true meaning of a statute is impugned and overthrown.' Further, standing by itself, the section does not provide for any relief that may affect a sale held in execution of the decree. As was observed by Blagden J. in Radhikalal v. Jitendra Nath : AIR1943Cal458 :
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 ho may have gathered before its aid is invoked.
10. The order made by the Courts below under Section 34(1)(b)(ii), Bengal Money-lenders Act, 1940, cannot, therefore, be allowed to stand. In my opinion, however, the reason given by the learned Additional Subordinate Judge in not giving the judgment-debtors relief under Section 36 of the Act, cannot be sup. ported. Section 30(2), Bengal Money-lenders Act, 1940, lays down that:
Notwithstanding anything contained in any law for the time being in force, or in any agreement, no borrower shall...be deemed to have been liable to pay...in respect of interest...included in a decree passed before such date, interest at rates per annum exceeding those specified in Sub-clause (c) of Clause (1).
11. The rates specified in Sub-clause (c) of Clause (1) are ten per centum simple for unsecured loans and eight per centum simple for secured loans. According to this provision, where there has been a decree before the commencement of the Bengal Money-lenders Act (1st September 1940) and the decree includes interest, the interest decreed will be deemed excessive if it happens to be at a rate exceeding the rates specified above. As has been pointed out above, the decree in the present case included Rs. 525 as interest for a period of three years prior to the institution of the suit. The principal of the loan was Rs. 1500. By the decree, therefore, the borrower was taken to have been liable to pay interest at the rate of 11 2/3 per cent, per annum. Section 30(2) of the Act, however, limits the liability in this respect to interest at the rate of 10 per cent, per annum only. The decree, therefore, imposes a liability in excess of the limits specified in Clauses (1) and (2) of Section 30. Section 36(1)(b) of the Act entitles the borrower to a release from this excess liability.
12. Mr. Das contends that in order to see whether or not the liability in respect of the interest included in the decree exceeds the limit imposed by Section 30(1)(c) of the Act, the amount of interest decreed must be taken to have been decreed for the period from the date of the loan to the date of the decree. I am unable to accept this contention of Mr. Das. The decree itself must be looked into in order to see what was decreed in this respect. Interest on the principal sum adjudged from the date of the suit to the date of the decree is left at the discretion of the Court by Section 84, Civil P.C. If in any case the Court does not decree any interest for this period, it is difficult to see why in applying Section 30, Bengal Money-Lenders Act, we should read the decree for interest as having been made for this period as well. In my opinion, in order to see whether or not in any case the decree imposes any liability in excess of the statutory limit provided by Section 30, Bengal Money-Lenders Act, the decree itself must be looked into and it must be ascertained for which period and on which principal, the amount of interest was decreed. The learned Subordinate Judge in disallowing relief under Section 36 of the Act observed: 'The plaintiff would be entitled to interest up to date, i.e., for full eight years if the decree be reopened.' It is not clear whether the learned Subordinate Judge made this observation keeping in view the provisions of Section 34, Civil P.C. The plaintiff would as of right be entitled to interest up to the date of the suit. As regards the period from the date of the suit to the date of the new decree that may be made, interest on the principal sum adjudged will still be at the discretion of the Court under Section 34, Civil P.C subject, of course, to the limits imposed by Section 30, Bengal Money-Lenders Act, 1940. The opening words of this section are wide enough to embrace even the discretion given by Section 34 of the Civil P.C.