The expression "decree" in Proviso (ii) to Section 3 (1) of the Usurious Loans Act, 1918, means a final executable decree, not a preliminary decree, and thus the passage of a preliminary decree does not debar the court from exercising its powers under Section 3 (1) of the Act.

A. M. BHATTACHARJEE, J.

( 1 ) A preliminary mortgage decree for sale was passed against the defendant-appellant which has thereafter been made final and the aggrieved defendant has filed this appeal. The defendant-appellant, having preferred no appeal against the preliminary decree, cannot obviously challenge the correctness of the said preliminary decree in this appeal against the final decree in view of the provisions of Section 97 of the Code of Civil Procedure. The learned Counsel for the defendant-appellant has not also attempted to do so. All that she has urged in support of the appeal is that the Trial Judge was wrong in making the preliminary decree final rejecting the defendant-appellant's application under Section 3 of the Usurious Loans Act, 1918 on the erroneous impression that the provisions of that Act can not be invoked after the passage of the preliminary decree.

( 2 ) THE defendant-appellant attempted to resist the passing of the final decree by an application invoking the provisions of the Usurious Loans Act of 1918, the Bengal Money-Lenders Act of 1933 and the Bengal Money Lenders Act of 1940 and he urged that the interest claimed was excessive and the transaction was substantially unfair and the transaction was, therefore, to be reopened under the appropriate provisions of the aforementioned enactments, notwithstanding the preliminary decree passed against him. As already noted, the application was rejected and the preliminary decree was made final

( 3 ) THE Trial Judge was right in holding that the provisions of the Bengal Money-Lenders Act, 1940 could not be invoked by the defendant-appellant as the mortgage loan sued upon was not a 'loan' within the meaning of the said Act. The plaintiff-respondent was the Life Insurance Corporation of India and Section 2 (12) (d) (ii) of the Bengal Money-Lenders Act of 1940 clearly provides that the expression 'loan' for the purpose of the Act "does not include. . . . a loan advanced. . . . by Insurance Company, Life Insurance Corporation of India. . . . ". It is not disputed that the loan in this case was advanced by the National Insurance Company Limited which was an Insurance Company and that the interest therein has now devolved on the Life Insurance Corporation of India under the Life Insurance Corporation Act, 1956.

( 4 ) THE Trial Judge was equally right in holding that the provisions of the Bengal Money Lenders Act of 1933 also could not apply to the case at hand. It is true that because of Section 45 of the Act of 1940, the provisions of the Act of 1933 could otherwise have applied this 'loan' sued upon as the Act of 1940 has outweighed the provisions of the Act of 1933 only in respect of 'loan' to which the Act of 1940 would be applicable. But, as already noted, since because of Section 2 (12) (d) (ii) of the Act of 1940, the said Act was not to apply to the loan in suit advanced by an Insurance Company or by the Life Insurance Corporation of India, the loan in suit, not thus being governed by the Act of 1940, could have otherwise attracted the provisions of the Act of 1933. But as clearly provided in the Proviso to Section 1 (2) of the Act of 1933, "nothing in this Act shall apply to any loan made within the limits of the ordinary original jurisdiction of the High Court, or under a contract made within those limits" and it has not been disputed that the contract of loan and the loan were made within those limits.

( 5 ) BUT we are, however, afraid that the Trial Judge was wrong in holding that the provisions of the Usurious Loans Act, 1918 also could not operate in this case. Section 45a of the Bengal Money-Lenders Act, 1940 has no doubt sought to repeal the said Act of 1918, but the repealment is not wholesale or total. Section 45a (2) of the Act of 1940, in repealing the Usurious Loans Act of 1918, has clearly provided that the repeal would take effect "except in cases relating to matters enumerated in sub-clauses (d), (e), (f), (h) and (i) of Clause (12

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