The main legal point established in the judgment is the interpretation and application of the Bengal Money-Lenders Act, particularly regarding the re-opening of decrees and the entitlement to restoration of properties.

JUDGMENT

1. This is a Rule directed against an order of the Subordinate Judge, Burdwan, dated July 18th, 1942, rejecting an application of the Petitioners for re-opening of a decree under sec. 36 (6) (a) (ii) of the Bengal Money-Lenders Act. The decree was an instalment decree of a composite character which was passed on the basis of a compromise in a mortgage suit, on October 9th, 1931. It is not disputed that the decree offends against sec. 30 of the Bengal Money-Lenders Act, and the Subordinate Judge further found that it was made in a suit to which the Act applies within the meaning of sec. 2 (22) of the Bengal Money-Lenders Act. The application has been refused primarily on the ground that the loan was a commercial loan and consequently the provisions of the Bengal Money-Lenders Act were not attracted to it. The Subordinate Judge further found that many of the properties, which were sold in execution of the decree sought to be re-opened and purchased by the decree-holder, were also sold either under Regulation VIII of 1819, or in execution of rent-decrees or certificates at the instance of the superior landlords, and although they were purchased by the decree-holders themselves in the benami of other persons, the judgment-debtors could not claim restoration of these properties, even if the decree was re-opened. For determining the point as to whether the decree should be re-opened or not, there are two things which require consideration: (1) whether the loan is a commercial loan within the meaning of the Bengal Money-Lenders Act, and (2) whether the decree was made in a suit to which the Act applies. Although on the second point the Subordinate Judge has found in favour of the Petitioners, it has been contended by Mr. Das, who appears for the Opposite Party, that the decision of the Subordinate Judge on this point is wrong.

2. So far as the first point is concerned, it is not disputed that the Petitioners had a rice-mill and a rice karbar at Katwa, and that they were in need of money for running that karbar. The question is whether the money was advanced with the intention that it would be used solely for purposes of the karbar. The recital in the document upon which the trial Court places reliance runs as follows:

We (borrowers) are running a rice-mill and a rice karbar at Katwa for which purpose and for other purposes we require large sums of money from time to time which we are unable to moot from our own fund..... It is for this reason that we are....

3. We are unable to agree with the Subordinate Judge that the purpose of the loan was only to finance the karbar that was not running well and did not include any other object, for which also the borrowers were in need of money as expressly stated in the document. If the clause "It is for this reason, etc.," refers only to the running of the karbar and has no connection with the other purposes mentioned earlier, it is difficult to see why other purposes were recited at all. We cannot hold that the recital in the mortgage bond conclusively shows that the only intention or purpose of taking the loan was the efficient running of the karbar. The Subordinate Judge was also not right in holding that there was a distinct admission in the written statement of the Petitioners filed in the mortgage suit that the loan was a purely commercial loan. There was indeed a general statement made by the mortgagees in their plaint that the money was taken for karbar. It was not a material allegation at that time, and hence strictly speaking no specific denial was necessary. The mortgagors, however, denied the entire allegation contained in that part of the plaint in general terms in paragraph 7 of the written statement. There is nothing in the written statement filed by the Petitioners in the mortgage suit from which we can spell out any admission on their part that the loan was taken exclusively for commercial purposes. The burden of proving the loan to be a commercial loan lies on the decree-