The main legal point established in the judgment is that the borrower could claim relief under S. 36 of the Bengal Money-Lenders Act, even if the same relief was denied to him in the suit for recovery of the loan. The principle of res judicata would not stand in the way of the Court's granting reliefs under S. 36, but once the powers are exercised and relief is granted or denied to the borrower, the decision would be final.

Mukherjee, J – This Rule has been obtained under section 25 of the provincial Small Cause Courts Act, and is directed against an order made by the Small Cause Court Judge at Sealdah dismissing a suit commenced by the petitioner under S. 36(1) of the Bengal Money-Lenders Act, 1940.

2. The material facts are not in controversy and may be shortly stated as follows In January, 1941, the opposite party instituted a suit against the Court of small Causes at Sealdah for recovery of a sum of Rs. 273/– alleged to be due as principal and interest on a promissory note executed by the latter on June 1, 1948. The petitioners did not appear or contest the suit, and an ex parte decree was passed in favour of the plaintiff for the entire amount claimed by him on January 27, 1941. On February 17, 1941, the petitioner filed an application for reopening the decree by way of review under S. 36(6)(a)(ii)of the Bengal Money-Lenders Act, and the ground alleged was that as the opposite party had already realised more than double the principal amount actually advanced by him, he was not entitled to recover any further amount from the latter. This application was allowed, and the Small cause Court Judge reopened the ex parie decree, and made a new decree in accordance with the provisions of the Bengal Money-Lenders Act.

3. Against this order the opposite party filed a petition of revision in this Court, and obtained Rule which was heard by my learned brother Henderson, J. on November 28, 1941. The learned Judge made the Rule absolute and reversed the order made by the Small Cause Court Judge being of opinion that as the suit was instituted after the passing of the Bengal Money-Lenders Act, the defendant petitioner might and ought to have claimed relief under the Act in the suit itself: and this not being done the decision operated as res judicata, and the application for review made under S. 36(6)(a)(ii) of the Bengal Money-Lenders Act, excluded barred. It was further held that the proviso to S. 36(1) of the Bengal Money-Lenders Act excluded the operation of the section from cases like this where the decree was passed after the first day of January 1939. The result was that the Rule was made absolute, and the ex parte decree obtained by the opposite party was affirmed.

4. The petitioner thereupon made an application for setting aside the ex parte decree under Order IX, rule 13 of the Code of Civil Procedure. That application being rejected, he instituted the present suit under S. 36(a) (ii) of the Bengal Money-Lenders Act praying for the reopening of the ex parte decree on the same ground that was put forward in the earlier application for review. The Small Cause Court Judge dismissed the suit on the ground that the matter was concluded by the decision of the High Court in the Revision case referred to above. It is the propriety of this decision which is challenged before m in this Rule.

5. Mr. Paresh Nath Mukherji who appears on behalf of the petitioner contended that the words “Notwithstanding anything contained, in any law for the time being in force", occurring at the beginning of S. 36 exclude the operation of the rule of res judicata contained in S. 11 of the Code of Civil Procedure or otherwise from any suit or proceeding commenced under that section. He contended that it was open to the borrower to institute a suit claiming relief under S. 36 of the Bengal Money-Lenders Act although the same relief was denied to him in the suit for recovery of the loan which was instituted subsequent to the passing of the Act or in the earlier application made under S. 36(6)(a)(ii) of the Act. It is said that Henderson, J. was not right on either of the two points upon which he based his decision in the Civil Revision Case mentioned above. It is contended that the ex parte decree would not bar an application under S. 36(6)(a)(ii) by any rule of res judicata nor was it a decree exempted from the operation of S. 36 of the Bengal Money-Lenders Act by reason o