The main legal point established is the interpretation of the term 'decree-holder' in the context of a re-opened decree under sec. 36 of the Bengal Money-Lenders Act.

JUDGMENT

1. On the 3rd December, 1920, the Petitioner borrowed Rs. 2,000 from the Madaripore Loan Office at an interest of 7 1/2 per cent, per annum with yearly rests, to be raised to 10 1/2 per cent, with yearly rests in case interest was not regularly paid. For securing the said loan he executed on the same day a mortgage bond by which he hypothecated five items of immovable property. The debtor paid in all Rs. 555 odd. For the balance of its dues the said Loan Office filed the suit in 1927. After a chequered progress the suit was finally decreed on the 8th February, 1936, when a final mortgage decree for Rs. 5,017 odd was passed. One Hemangini Debi had in the meantime obtained a money decree against the Madaripore Loan Office. She assigned her decree to one Jagat Chandra Singha (Opposite Party No. 2). To recover his dues under this decree from the Madaripore Loan Office Jagat Chandra attached the mortgage decree which the said Loan Office had obtained against the Petitioner under the provisions of Or. 21, r. 53 of the Code of Civil Procedure. As attaching creditor he carried on the execution of the said mortgage decree against the Petitioner and at the Court sale purchased four out of the five items of mortgaged properties at a price of Rs. 1,800 on the 30th June, 1938. The sale was confirmed and possession was taken on the 5th March, 1941, when the execution case was finally disposed of. On the 31st March, 1941. the Petitioner filed an application under sec. 36 of the Bengal Money-Lenders Act for re-opening the final mortgage decree passed against him in 1936 with a prayer for restoration to him of the possession of the four items of immovable property, which Jagat Chandra had purchased in the execution proceedings, which he had started as an attaching creditor of the Madaripore Loan Office, in case the said decree was re-opened. The Madaripore Loan Office took no interest in the proceedings so started, but Jagat Chandra opposed the said application. The learned Subordinate Judge dismissed the said application by his order dated the 9th September, 1941. On this Court being moved that order was set aside and the matter was remanded to the learned Subordinate Judge for reconsideration. The learned Subordinate Judge has again dismissed the said application by his order dated the 18th November, 1942. He has given two reasons in support of his order, namely (1) that the application made under sec. 36 of the Bengal Money-Lenders Act was not maintainable, as on the date when it was made no suit or proceeding in connection with that loan was pending, and (2) because the "sale could not be set aside as the Madaripore Loan Office was a bond fide purchaser for value." There is obviously a slip here. He meant to say that Jagat Chandra Singha was the bond fide purchaser for value. Against this order the present Rule has been obtained. The judgment of the learned Subordinate Judge is rather sketchy and obscure. The matter therefore has to be examined by us on the facts which are admitted.

2. The learned Subordinate Judge's first reason is clearly untenable. The test is not whether any suit or proceeding in connection with the loan was pending at the date of such an application, but whether any suit or proceeding, which includes execution proceedings, were pending on the 1st January, 1939. If there was, the suit would be one to which the Bengal Money-Lenders Act would apply. In this case the proceeding for executing the mortgage decree which had been started in 1938 was pending on the 1st January, 1939, it having been finally disposed of on the 5th March, 1941. The mortgage decrees, both the preliminary and the final, are clearly in contravention of sec. 30 of the Act. The final mortgage decree was not fully satisfied on the 5th March, 1941, nor has it been satisfied yet, for the fifth property has not been sold. It can therefore be re-opened. The only other question is whether the Petitioner can be restored to possession on the re-opening