The interpretation of statutory provisions and the application of legal definitions in determining the applicability of the Bengal Money-lenders Act to a mortgage suit.

ORDER

1. This is a rule directed against an order of the Subordinate Judge of Bankura dated 30th June 1941, refusing the petitioner's application for certain reliefs u/s 36, Bengal Money-lenders Act. The material facts are not in controversy and may be briefly stated as follows : The opposite party before us advanced moneys on four different mortgages to the present petitioner at different times. There was a suit commenced on the four mortgage bonds on 16th April 1934, and a preliminary decree was passed on 6th June 1933, for a sum of about Rs. 11,212 annas odd. The decree was made final on 15th November 1935 and in execution of the final decree the mortgaged properties were put up to sale and they were purchased by the decree-holder on 25th April 1936. The decree, holder took possession of the properties sometime in July 1936. As the entire decretal amount was not satisfied by the sale of the mortgaged properties, the decree-holder started a proceeding under Order 34, Rule 6, Civil P.C., and got a personal decree on 12th June 1937. In execution of this personal decree, some other properties belonging to the judgment-debtor were sold on 11th November 1937 and they were also purchased by the decree-bolder. After taking possession of these properties on 22nd March 1938, no further steps were taken by the decree-holder in connexion with the personal decree and on 27th February 1941, the present application was made by the judgment-debtor u/s 36, Bengal Money-lenders Act, praying that the decrees passed in the mortgage suit might be re-opened. The application was rejected by the Court on the ground that the suit was not one to which this Act applied as defined in Section 2, Clause (22), Bengal Money-lenders Act. It is the propriety of the decision that has been challenged before us by Mr. Chatterji who appears in support of the rule.

2. We may state at the outset that the learned Judge was apparently labouring under a misapprehension regarding one material fact. The learned Judge thought that the decree-holder had not taken any steps under Order 34, Rule 6, Civil P.C., and no personal decree under that section was obtained. This is certainly a mistake as the facts stated above will show. But Mr. Das appearing on behalf of the opposite party has contended before us that even though that statement is incorrect, yet as there was no proceeding in execution of the personal decree pending on or after 1st January 1939, the mortgage suit could not be deemed to be a suit to which this Act applied. Mr. Chatterji, on the other hand, refers to the decision of Edgley J., in Suresh Chandra Mukherjee Vs. Lal Mohun Chatterjee and Another, AIR 1942 Cal 121 and argues that so long as the personal decree is not satisfied the suit must be deemed to be pending. It may be pointed out that the opinion expressed by Edgley J., in that case was subsequently approved of in a later decision of a Division Bench to which also Edgley J., was a party : vide Saradindu Mukherjee Vs. Jahar Lall Agarwalla, AIR 1942 Cal 153 . With reference to the case in Suresh Chandra Mukherjee Vs. Lal Mohun Chatterjee and Another, AIR 1942 Cal 121 we venture to point out that the report of the case would dearly show that the sale in execution of the final mortgage decree in that case took place on 30th August 1939 that is to say, long after 1st January 1939. The mortgage suit must, therefore, on the admitted facts of that case, be a suit to which the Act applied according to Section 2, Clause (22), Bengal Money-lenders Act, and it was not necessary for our learned brother to go further and say that if the mortgage decree had not been fully satisfied before 1st January 1939, it must be deemed to be a suit to which the Bengal Money-lenders Act, applied. With great respect to Edgley J., we desire to point out that the view taken by him would really go against the plain words of Section 2, Clause (22) of the Act. The wording of that section is perfectly clear and lays down that the expr