The central legal point established in the judgment is that decrees made in a suit not covered by the Bengal Money-Lenders Act cannot be reviewed and re-opened under sec. 36 of the Act.

JUDGMENT

1. This is a Rule obtained by the Petitioner upon the Opposite Party to show cause why the order of the First Court of the Subordinate Judge, Chittagong, dated the 17th day of January, 1941, dismissing the Petitioner's application under sec. 36 of the Bengal Money-Lenders Act, 1940, should not be set aside. The material facts are these: On 26th of August, 1927, the Petitioner mortgaged certain properties to Opposite Party No. 2 for a sum of Rs. 420 on interest at 15 per cent, per annum. On 24th April, 1932, the Opposite Party No. 2 assigned the said mortgage in favour of the Opposite Party No. 1. On 9th May, 1935, the Opposite Party No. 1 obtained a preliminary mortgage decree for sale in the First Court of the Subordinate Judge at Chittagong for Rs. 840 with interest at the rate of 6 per cent, from the date of the decree till realisation. On or after the 9th June, 1935, the preliminary mortgage decree was made final. On the 13th February, 1937, the Opposite Party No. 2 put the mortgaged property to sale and purchased the same for a sum of Rs. 700. On 27th October, 1937, he took delivery of possession of the mortgaged properties through Court. On 20th November, 1937, the Opposite Party No. 1 obtained a personal decree against the Petitioner for the balance of the decretal amount. On 1st September, 1940, the Bengal Money-Lenders Act, 1940, came into operation. On 11th September, 1940, the Petitioner filed an application under sec. 36 (6) of the Bengal Money-Lenders Act, 1940, for review of the three decrees, for re-opening of them, for passing a new decree under the said Act and for delivery of possession of the mortgaged properties to her. This application was dismissed by the Subordinate Judge on the 17th of January, 1941. The provisions of sec. 36 of the Bengal Money-Lenders Act so far as they are material for purposes of the present case are these:

36(1). Notwithstanding anything contained in any law for the time being in force if in any suit this Act applies...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 powers as it shall consider appropriate, namely,-

(a) re-open any transaction and take an account between the parties....

Provided that in the exercise of these powers the Court shall not....

(ii) do anything which affects any decree of a other than a decree in a suit to which this Act applies which was not fully satisfied by the 1st day of January, 1939.....

(2) If in exercise of the powers conferred by sub-sec. 1 the court reopens a decree the court-

(a) shall after affording the parties all opportunities of being heard pass a new decree in accordance with the provisions of this Act....

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

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

(ii) on an application for review of such decree made within one year of the date of commencement of this Act...

2. An application under sec. 36 (6) for review of a decree and for re-opening it maintainable-

(1) if the said decree was passed in a suit to which the Act applies; and

(2) If the said decree was not fully satisfied by the 1st day of January, 1939.

3. The expression "a suit to which the Act applies" has been defined in sec. 2 (22) of the Act which is in these terms:

A suit to which this Act applies means any suit or proceeding instituted or filed, on or after the 1st day of January, 1939, or pending on that date and includes a proceeding in execution.

4. The dictionary meaning of the word "pending" in this definition is "undecided" or "awaiting decision." The proceeding in execution contemplated by this definition is "a proceeding in execution instituted or filed on or after the 1st day of January, 1939, or pending on that date." In this case no p