The main legal point established in the judgment is the interpretation and application of Section 36(6) of the Bengal Money-Lenders Act in determining the maintainability of the borrower's application for relief.

ORDER

Sen, J. - This is an application by the defendant for relief under the Bengal Money-Lenders Act. The plaintiff, Dr. S. Roy, instituted a suit against the defendant on a promissory note which had been executed by the defendant in favour of one Capt. N. N. Dutt endorsed by Capt. N. N. Dutt in favour of the plaintiff. The promissory note was for the sum of Rs. 11,970 and interest was payable thereon at 12 per cent. The suit was instituted in this Court in the year 1936 and a decree was passed ex parte on 20th November 1936. This decree was transferred for execution to the Court of the Third Subordinate Judge at Alipore, and execution proceedings are still pending in that Court. The defendant has moved this Court by an application in which various allegations have been made many of which it is not necessary for me to consider. The main point urged is that the interest charged on the note was in excess of that payable under the Bengal Money-Lenders Act. The defendant claims that this alone would give him a right to relief under the Act. He also claims that the decree passed is for more than twice the principal of the original loan.

2. The plaintiff meets this application on two broad grounds. First, he says that this application is incompetent inasmuch as it has been made more than one year since the Bengal Money-Lenders Act came into force, and inasmuch as no proceedings in execution are pending before this Court. In support of this contention he relies on Section 86 (1) and (6), Bengal Money-Lenders Act. Next he contends that he is a bona fide assignee for value without notice, and therefore protected by the provisions of Section 36, Sub-section (5). In my opinion, the first point urged on behalf of the decree-holder must prevail. It is admitted that this application has been made more than one year since the commencement of the Bengal Money-Lenders Act. It is also clear that no proceedings in execution are pending before this Court. The execution proceedings are pending before the Subordinate Judge at Alipore. Now Section 36, Sub-section (1) runs as follows:

Notwithstanding anything contained in any law for the time being in force, if in any suit to which this Act applies, or in any suit brought by a borrower for relief under this section whether heard ex parte or otherwise, 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, etc.

Sub-section (6) is in these terms:

Notwithstanding anything contained in any law for the time being in force,--

(a) the Court which, in a suit to which this Act applies, passed a decree which was not fully satisfied by the first day of January 1939 may exercise the powers conferred by Sub-sections (1) and (2);

(i) in any proceedings in execution of such decree, or;

(ii) on an application for review of such decree made within one year of the date of commencement of this Act, and the provisions of Br. 2 and 5 of Order 47 of Schedule 1, Civil P.C., 1908, shall not apply to any such application;

(b) any Court before which an appeal is pending in respect of a decree referred to in Clause. (a) may either itself exercise the like powers as may be exercised under Sub-sections (1) and (2), or refer the case to the Court which passed the decree directing such Court to exercise such powers, and such Court shall after exercise thereof return the record with the additional evidence, if any, taken by it and its findings and the reasons therefor to the appellate Court and thereupon the provisions of Rule 26 of Order 41 of Schedule 1, Civil P.C., 1908, shall apply.

Reading these two sub-sections together it seems to me that the position of a person claiming relief u/s 36 would be as follows: If the suit has not proceeded to a final decree, that is to say, if the suit is actually being heard the borrower may apply in that suit for relief under t