The main legal point established is that the court cannot reopen a decree under sec. 36 of the Bengal Money-Lenders Act unless the judgment-debtors establish facts to entitle the court to exercise the powers contained in sec. 36.

JUDGMENT

1. On the 6th October, 1936, the Petitioners before us and others borrowed a sum of Rs. 10,000 from Opposite Party decree-holder Lalji Moraji Ranchord. The said Petitioners and others executed a mortgage on the same day stipulating to pay interest at the rate of 7 per cent, with annual rest. In 1940, the said Opposite Party instituted a suit on the said mortgage, the suit being No. 14 of the Court of the Subordinate Judge at Darjeeling. On the 29th May, 1941, a preliminary decree was passed ex parte. The interest up to the date of grace as provided for in that decree was calculated at Rs. 3,735-7-9. The total amount for which a preliminary decree was passed was Rs. 15,079. That sum was made up of principal advanced, namely, Rs. 10,000, Rs. 3,735-7-9 being the interest calculated up to the date of grace as fixed in the preliminary decree and the balance represented cost. The final decree was made on the 18th November, 1941, for an amount of Rs. 15,507-0-6 which included the cost of the final decree. The final decree provided for the payment of interest on the decretal amount at the rate of 6 per cent, from the date of the final decree till realization. On the 20th December, 1941, the decree-holder applied for execution of the decree. The terms of the sale proclamation were settled and the sale proclamation was issued on the 23rd May, 1942, fixing the 16th July, 1942, for the date of the sale. The amount recoverable was stated in the sale proclamation to be Rs. 16,242 odd. That amount was made up of the amount mentioned in the final decree together with interest on the decretal amount at 6 per cent. calculated from the date of the final decree till the date of the sale which as we have already stated, was fixed for the 16th July, 1942. In the course of the execution proceedings three of the judgment-debtors who are Petitioners before us, filed an application before the executing Court. That was a composite application. Some of the grounds taken in that application related to objections that can be filed under sec. 47 of the Code of Civil Procedure. The other grounds mentioned in the said application would properly pertain to an application under sec. 36 of the Bengal Money-Lenders Act. The matter was disposed of by the learned Subordinate Judge in one order, namely, Order No. 18 dated the 8th August, 1942. He overruled all the objections raised in the aforesaid application of the said judgment-debtors, that is to say, he overruled those objections which would properly come under sec. 47 of the CPC as also the other objections which would, if allowed, support the prayer made by the judgment-debtor under sec. 36 of the Bengal Money-Lenders Act for re-opening the mortgage decree. Against the said order, an appeal was filed to this Court. That appeal concerned the objections which would properly come under sec. 47 of the Code of Civil Procedure. It was numbered First Miscellaneous Appeal No. 176 of 1942. The appeal was not ultimately pressed and was dismissed for default by a Division Bench of this Court on the 22nd June, 1943. An application under sec. 115 of the CPC was also filed by the Petitioners against that portion of the order by which the learned Subordinate Judge refused to re-open the decree under the provisions of sec. 36 of the Bengal Money-Lenders Act. That application has now come up before us as a contested application. The scope of this application is whether the learned Subordinate Judge was right in saying that he had no power to reopen the mortgage decree inasmuch as the facts established in the case had not empowered him to follow that course. The learned Subordinate Judge pointed out that the amount of interest that has been awarded by the decree up to the period of grace, which amount has been included in the final decree, is not in excess of the amount that may be allowed if the interest is calculated up to the said date at the rate of 8 per cent. per annum, simple. This finding of the learned Subordi