Judgment

SHAH, J. : (For himself and Kapur J.) To secure repayment of Rs. 2,500/- Anath Nath Mittra-hereinafter referred to as Mittra-mortgaged four parcels of land to Haridas Mondal-hereinafter referred to as Mondal-by deed dated April 25, 1930. Mondal filed suit No. 18 of 1937 on June 11, 1937, for enforcement of the mortgage in the Court of the 2nd Subordinate Judge, Midnapore, and obtained a preliminary mortgagee decree for Rs. 5,000/- and interest and costs, This decree was made absolute and in execution of the decree, the mortgaged property was sold for Rs. 4,160/- and an amount of Rs. 2,176-6-6 out of the decretal amount remained due and payable under the mortgage decree. Out of the four parcels of land sold, three were purchased by Mondal and the remaining was purchased by Mittra s wife. Mondal then applied for a personal decree under O. 34, R. 6 of the Civil Procedure Code and obtained on September 7, 1940, a decree for payment of Rs. 2,338-15-0 against Mittra. Mondal then applied for executing the personal decree by Misc. Execution Case No. 11 of 1941. In the meanwhile, the Bengal Legislature enacted the Bengal Money-lenders Act, 1940, which enabled the courts in certain circumstances to reopen decrees already passed. Availing himself of this Act, Mitra filed a suit under S. 36 of the Bengal Money-lenders Act for an order for reopening the personal decree. By order dated August 16, 1941, the Subordinate Judge, Midnapore decreed the suit and directed that a new decree for Rs. 1,431-15-0 be drawn up and that the amount due under the personal decree be paid in three annual instalments. Against this decree, an appeal was preferred to the District Court. Midnapore. The District Judge dismissed the appeal and allowed the cross-objections filed by Mondal. In Second Appeal No. 1442 of 1942, the High Court of Judicature at Calcutta set aside the decree of the District Judge and restored the decree of the Subordinate Judge, 2nd Court, Midnapore. Mittra did not pay the amount as directed under the new decree and Mondal applied for executing the decree. Mittra then filed another suit under S. 36 of the Bengal Money-lenders Act in the 2nd Court of the Subordinate Judge, Midnapore, for reopening the decrees preliminary and final passed in the mortgage suit. The Subordinate Judge dismissed this suit as it was, in his view, barred as res judicata. In appeal to the District Court, the decree was confirmed. But the High Court in Second Appeal ordered that the preliminary and final decrees be reopened and the case be remanded to the trial court for passing a fresh preliminary decree. Against the said decree of the High Court, this appeal is filed with special leave.

2. Section 30 of the Bengal Money-lenders Act,1940, provides in so far as it is material that notwithstanding anything contained in any law for the time being in force, or in any agreement, no borrower shall be liable to pay after the commencement of the Act a sum in respect of principal & interest which, together with any amount already paid or included in any decree in respect of a loan exceeds twice the principal of the original loan and that the borrower shall not be liable to pay interest at rate per annum in cases of secured loans exceeding 8 per cent. simple. By S. 36, the liability on loans secured or otherwise which contravenes the provisions of S. 30 is liable to be reopened. It is provided by sub-sec. (1) of S. 36 in so far as it is material that notwithstanding anything contained in any law for the time being in force, if in any suit brought by a borrower for relief under this section whether heard ex parte or otherwise, the court has reason to believe that the exercise of one or more of the powers under the section will give relief to the borrower it shall exercise all or any of the powers specified therein as may be considered appropriate. The court is invested with the power of reopening transactions including taking of accounts between the parties, of releasin