In a mortgage suit, the preliminary, final, and personal decrees constitute a single money decree. Such a decree is not "fully satisfied" until the entire debt is realized; thus, if a personal decree remains unsatisfied, all preceding decrees in that suit may be re-opened.

Judgement

Appeal (No. 3 of 1948) from a judgment and decree of the High Court (June 29, 1944) affirming with certain variations the order and decree (August 25, 1941, and May 10, 1943, respectively)—in Misc. Case No. 18/40—passed by the Subordinate Judge at Alipore.

Law Rep. 76 Ind. App. 179 ( 1948- 1949) Jadunath Roy V. Kshitish Chandra Acharjya Choudhury

96

The following facts and statutory provisions are taken from the judgment of the Judicial Committee. This appeal arose from a petition made by the respondents for re-opening certain mortgage decrees obtained by the appellants respectively on April 4, 1929, September 13, 1929, and December 13, 1937 (in Title Suit No. 121 of 1927). The right to re-open the decrees was claimed under s. 36 of the Bengal Money Lenders Act (Beng. Act X. of 1940) herein referred to as " the Act.” The material provisions of s. 36 of the Act were—

" 36.—(1.) Notwithstanding anything contained in any “law for the time being in force, if in any suit to which " this Act applies .... the court has reason to believe "that the exercise of one or more of the powers under " this section will give relief to the borrower, it shall exercise " all or any of the following powers as it may consider " appropriate, namely, shall—

" (a) re-open any transaction and take an account " between the parties ;

“ * * * *

" (c) release the borrower of all liability in excess of " the limits specified in clauses (1.) and (2.) of section 30 ;

“* * * *

" Provided that in the exercise of these powers the " Court shall not—

" (i) * * * *

" (ii) do anything which affects any decree of a Court, " other than a decree in a suit to which this Act applies " which was not fully satisfied by the 1st day of "January, 1939.....

." Explanation.—A decree shall not, for the purposes " of this section, be deemed to have been fully satisfied " so long as there remains undisposed of an application " by the decree-holder for possession of property purchased " by him in execution of the decree.

" (2.) If in exercise of the powers conferred by sub- section (1.) the Court re-opens a decree, the Court—

" (a) shall, after affording the parties an opportunity " of being heard, pass a new decree in accordance with " the provisions of this Act . , . .

“ * * * *

" (4.) This section shall apply to any suit, whatever " its form may be, if such suit is substantially one for the " recovery of a loan or for the enforcement of any agreement or security in respect of a loan or for the redemption of " any such security."

* * * *

The question for decision in this appeal was whether in the circumstances of the case the respondents were entitled to have the aforesaid decrees re-opened under s. 36 of the Act. The father and predecessor-in-interest of the respondents obtained two loans, one for Rs. 1,60,000, and another for Rs. 73,000, from the opposite party No. 1, and predecessor-in-interest of opposite parties Nos. 2 and 3

Law Rep. 76 Ind. App. 179 ( 1948- 1949) Jadunath Roy V. Kshitish Chandra Acharjya Choudhury

97

(appellants) by executing two mortgages dated August 16, 1918, at 8 per cent, interest per annum with yearly rests. On March 10, 1926, the mortgagees instituted in the court of the Additional Subordinate Judge at Alipore a suit, which became Title Suit 121/ 1927, to enforce both the mortgages, and obtained a preliminary mortgage decree for sale under Ord. 34, r. 4, Code of Civil Procedure, for a total sum of Rs. 4,21,851-6-6 on April 4, 192Q. The decree declared (1.) that two sums which amounted to the above-mentioned sum were due to the mortgagees. After that declaration, (2.) the usual decree for sale was made of the properties specified in the schedules in default of payment by July 3, 1929. (3.) The decree further provided that if the net proceeds of the sale were insufficient to pay the amount, subsequent interest and costs in full " the plaintiff shall be at liberty to apply for a " personal decree for the amount of the balance." On September 13,