Fazl Ali, J.@mdashThe only point to be decided in this miscellaneous appeal is whether Section 10, Orissa Money-Lenders Act (Act 3 of 1939) would apply to d the execution proceeding on account of the provisions of Section 16 of the Act.
2. For the decision of this point it is not necessary to refer to the facts of the case, but they may be very briefly stated. The respondent obtained a preliminary mortgage decree against the appellants on 5th August 1936. The decree was made final on 3rd February 1937, and in execution of that decree all the mortgaged properties were sold, but a portion of the decree still remained unsatisfied. Subsequently the respondent obtained a decree under Order 34, Rule 6, Civil P.C., for such portion of the decretal amount as had remained unsatisfied, and the present question has arisen in the course of the execution of this decree. It was urged in the Court below on behalf of the judgment-debtors that Section 10, Money-lenders Act, applies to an execution proceeding also, and the Court was asked to give relief to the appellants in regard to interest by applying that section. The Court below refused to do so, holding that Section 10 did not apply to execution proceedings; and the judgment-debtors have appealed to this Court. Section 10 provides that:
(1) Notwithstanding anything to the contrary contained in any other law or in anything having the force of law or in any contract, no Court shall, in any suit brought by a money-lender in respect of a loan, advanced before or after the commencement of this Act, pass a decree for an amount of interest for the period preceding the institution of the suit, which together with any amount already realised as interest through Court or otherwise, is greater than the amount of the loan originally advanced.
(2) Where, in any suit, as is referred to in Sub-section (I), it is found that the amount already realised as interest through Court or otherwise, for the period preceding the institution of the suit, is greater than the amount of the loan originally advanced, so much of the said amount of interest as is in excess of the loan shall be appropriated towards the satisfaction of the loan and the Court shall pass a decree for the payment of the balance of the loan, if any.
3. This section read by itself must be held to apply to suits only, because there is nothing in it to show that it will be applicable even after the suit has been decided and after the execution proceedings have been started. But Section 16 of the act reads thus:
The provisions of Sections 10 to 15 shall apply (i) to suits brought by money-lenders in respect of loans advanced before the commencement of this Act, and pending on the date on which the said sections come into force, and (ii) to appeals and proceedings in execution arising in respect of decrees passed on 1st April 1936, or thereafter on the basis of loans whether such appeals or proceedings in execution were pending on, or instituted after, the date on which the said sections come into force.
4. It is contended that by this section, Section 10 has been made applicable to execution proceedings also. The argument is a plausible one, but on a careful examination of the matter I am convinced that the interpretation suggested on behalf of the appellants is not the correct one, Sections 10 to 15 occur in Ch. 3, which purports to contain certain provisions relating to suits in respect of loans and execution of decrees. It is sometimes said that an execution proceeding is a mere continuation of a suit and, therefore, a suit includes an execution proceeding but the distinction between a suit and an execution proceeding has been carefully observed in this chapter and cannot be overlooked. Sections 8 to 12 are sections which purport to be applicable only to a suit instituted by a money-lender. Section 13 is a section which can be made applicable only after the suit has resulted in a decree. Sections 14 and 15 apply in terms only to execution proceedings. These sections when carefully read would appear to be more or less self-contained, and I am of the opinion that if it had been intended that Section 10 should apply even after the suit has resulted in a decree and after execution proceedings have been started, there would have been a provision in that section similar to Clause (2) of Section 11. Clause 1 of Section 11 indicates that the provisions as to re-opening the transaction etc. which are made therein, will apply to a suit only, but Clause (2) expressly provides, that where a decree remains unsatisfied on the date on which this Act came into force, the Court which passed the decree, or the Court to which a decree is sent for execution, may exercise all or any of the powers specified in Sub-section (1). Now, if we were to construe Section 16 in the manner suggested on behalf of the appellants, Clause (2) of Section 11 would appear to be redundant, and it would also be difficult to understand why a similar provision was not made in Section 10.
5. There is also another reason why I am not inclined to accept the contention put forward on behalf of the appellants. Sections 14 and 15 can in no sense apply to suits. Section 14 clearly states that the Court is to estimate the value of judgment-debtor''s property "when an application is made for the execution of a decree." Section 15 provides, amongst other things, that the proclamation of sale of property in execution of a decree shall include only so much of the property of the judgment-debtors the proceeds of the sale of which the Court considers will be sufficient to satisfy the decree. Now, clearly these provisions cannot be availed of until a decree has been passed and is being executed. Nevertheless, if the view suggested on behalf of the appellants is correct, these sections must be held to be applicable to suits before any decree is passed. But will it be necessary to estimate the value of the judgment-debtor''s property at that stage even though no decree against the defendant may have to be passed and even though no execution may be necessary. While the suit is pending trial, no one can say whether the suit will result in a decree in favour of the plaintiff, or whether it will be dismissed. That being so, it will be difficult to hold that Sections 14 and 15 can be applied to suits at a stage when no decree has been passed.
6. In my opinion, Section 16 was enacted only for the purpose of showing to what extent Sections 10 to 15 were intended to be retrospective. The marginal note to this section runs to this effect: "Sections 14 and 15 will apply to certain pending suits, appeals and execution proceedings." Now "pending" is the important word here, and it should also be noted that the word ''certain'' shows that these sections were to apply only to such pending suits, appeals and execution proceedings, as the case may be, as answered a certain description, in other words, the object of this section was not to widen the scope of Sections 10 to 15 beyond what was to be gathered from the language of those sections, when read independently of Section 16, but it was to define the limits within which they would have retrospective operation. Therefore, Section 16 when it is properly read must be held to mean that such out of Sections 10 to 15 as are applicable to suits and appeals shall be applicable to them under the conditions set out in Section 16 and such of them as are applicable to execution proceedings will also be applicable under the conditions set out in the section. The condition with regard to suits is that the suit must have been brought by a money-lender in respect of a loan advanced before the commencement of the Act and pending on the date on which the relevant section came into force. The condition with regard to appeals and execution proceedings is that these appeals and execution proceedings must arise in respect of decrees passed on 1st April 1936, or thereafter, on the basis of loans whether such appeals or proceedings in execution were pending on or instituted after the date on which the said sections come into force. The framers of the section must have known that the language of Sections 10 to 15 was quite explicit on the question as to which of them would apply to suits and which would apply to execution proceedings, and so while enacting this section they did not consider it necessary to reiterate that some out of Sections 10 to 15 were intended to apply to suits only and some to execution proceedings. It would have been better if they had used some such expression as "as the case may be"; but I think that even in the absence of such an expression there can be no difficulty in arriving at the correct meaning of the section. Our attention was drawn by the learned advcoate for the appellants to the decision of a Bench of this Court in
Varma, J
I agree.
