Derbyshire, C.J.@mdashThis is an appeal from an order of Edgley, J., dated June 19th, 1941, where the borrowers asked for relief under the Bengal Money-Lenders Act of 1940 as against the puisne mortgagee Rai Gunendra Krishna Roy Bahadur. Originally the Jessore Loan Company were the Plaintiffs in the suit and the applicants were the Defendants and Rai Gunendra Krishna Roy Bahadur was joined as a puisne mortgagee of the property mortgaged by the applicants to the Jessore Loan Company and certain other property.
2. The decree obtained by the Jessore Loan Company has been satisfied and the position at present is that the puisne mortgagee Rai Gunendra Krishna Roy Bahadur obtained a final mortgage decree against the applicants on May 27th, 1935, but the same has not yet been satisfied.
3. The decree was based on certain money-lending transactions in which there were varying rates of compound interest, in some cases ten per cent. and in some cases eleven per cent. The rates of interest were therefore above those sanctioned by sec. 30 of the Bengal Money-Lenders Act, and the applicants applied for relief, in particular asking that the decrees obtained by Rai Gunendra Krishna Roy Bahadur should be re-opened and a fresh decree passed on the basis of the provisions of the Bengal Money-Lenders Act, that the new decretal amount should be made payable by twenty annual instalments, and that the order for the sale of the mortgaged property without reserve should be vacated.
4. On the date of the passing of the decree the decretal amount was Rs. 2,17,509-15-11. A sum of Rs. 1,48,075-13-9 has been paid by the applicants and, according to the decree, the applicants are liable to pay to Rai Gunendra Krishna Roy Bahadur the sum of Rs. 1,86,334-8-0.
5. The learned Judge dealt with the matter upon the affidavits before him. No written judgment has been given but the Judge''s decision is embodied in the order appealed from, the relevant part of which is as follows:--
This Court doth not think it necessary that the said decrees should he re-opened in so far as the said puisne mortgagee Defendant Gunendra Krishna Roy is concerned, it being possible to afford the applicants appropriate relief by exercising the power conferred upon this Court under sec. 36 (1) (c) of the Bengal Money-Lenders Act, 1940: And it is ordered that the said applicant will therefore be released of all liability in excess of the limits specified in cls. (1) and (2) of sec. 30 of the said Act and that the Registrar of this Court do take an account and report the liability of the applicants accordingly as on the date when this application was filed : And it is further ordered that the said Registrar be at liberty to act under this order on Counsel''s endorsement being shown to him.
6. Pursuant to that order the Registrar made a report on July 29th, 1941, as follows:--
I have re-examined the accounts in this suit as far as the puisne mortgagee Defendant Rai Bahadur Gunendra Krishna Roy is concerned.
''That after hearing the parties and examining the state of facts and counter state of facts which have been filed and a figure having been agreed upon between the parties as representing the amount now due to the said Defendant Roy Bahadur Gunendra Krishna Roy under the provisions of the Bengal Money-Lenders Act, X of 1940, a sum of Rupees ninetythree thousand and five hundred was found due for balance of principal and interest up to the thirtieth day of April one thousand nine hundred and fortyone being the date of the application under the said Act, made herein by the said mortgagor Defendant Bhupendra Krishna Mukherjee and Dharendra Krishna Mukherjee.
That the said mortgagor Defendants will be liable to the said Rai Bahadur to that extent and my previous report dated the ninth day of July, one thousand nine hundred and thirtyfour, shall stand modified accordingly.
7. The applicants, the debtors, have therefore benefited under the powers exercised by the learned Judge to a considerable extent. The liability has been reduced from a figure of Rs. 1,86,334-8-0 to a figure of Rs. 93,500. But the debtor applicants say that they are entitled to something more than that. They are entitled, they say, to have the sum which has been found owing by them made payable by instalments. Obviously payment by instalments of such a large amount would be of considerable benefit to the applicants.
8. The learned Judge, however, has recorded in his order that he does not think it necessary that the decrees should be re-opened. Sec. 36 (2) of the Bengal Money-Lenders Act provides that-
If in exercise of the powers conferred by sub-sec. (1) the Court re-opens a decree, the Court--
(d) shall order the judgment-debtor to pay to the decree-holder, in such number of instalments as it may think fit, the whole amount of the new decree passed under cl. (a).
9. The learned Judge not having thought it necessary "to re-open the decrees," to use his own words, has omitted to order payment by instalments.
10. The learned Judge has released the borrower of all liability in excess of the limits specified in cls. (1) and (2) of sec. 30, and he has ordered an account to be taken by the Registrar and a report made of the liability of the applicants, the debtors.
11. It is clear that in releasing the applicants of all liability in excess of the limits laid down in sec. 30 (1) and (2) he has ordered that they be released from any sums due in respect of compound interest above the rate of eight per cent. per annum.
12. To ascertain what is the amount due from the applicants under the permitted rate of interest (which is in-ferentially eight per cent.) a fresh account had to be taken by the Registrar, and taken on the basis of what the applicants were due to pay over the period in question at the permitted rate of eight per cent. simple. To my mind that taking of a fresh account on the basis of what is permitted so that the decree may be adjusted amounts to a re-opening of the transaction between the parties.
13. The words " re-opening the transaction" are of long standing and one of the first instances of their use in legislation, as far as I am aware, was in the Money-Lenders Act of 1900 in England, Chapter 51, where it is provided, amongst other things, that where the interest on a loan is excessive
the amounts charged for expenses, inquiries, fines, bonuses, premiums, renewals or any other charges, are excessive, and that, in either case, the transaction is harsh and unconscionable, or is otherwise such that a Court of equity would give relief, the Court may re-open the transaction, and take an account between the money-lender and the person sued, and may, notwithstanding any statement or settlement of account or any agreement purporting to close previous dealings and create a new obligation, re-open any account already taken between them, and relieve the person sued from payment of any sum in excess of the sum adjudged by the Court to be fairly due in respect of such principal, interest and charges, as the Court having regard to the risk and all the circumstances, may adjudge to be reasonable.
14. The words which follow the words "re-open the transaction " indicate that "re-opening the transaction" means, taking accounts between the moneylender and the person sued on the basis that the statute prescribes. I believe that that meaning is the one which has been generally attributed to the words "re-opening the transaction." That interpretation of the words appears to be confirmed in the Bengal Money-Lenders Act itself in sec. 36 (1) (a) which provides that in certain circumstances the Court shall "re-open any transaction and take an account between the parties." Re-opening the transaction therefore means taking a fresh account between the parties on the basis prescribed by the statute, and that is in fact what the learned Judge has ordered in this case.
15. It seems to me therefore that the words of his order that it is not necessary that the decrees should be reopened are due to a misunderstanding by the learned Judge of the meaning of the words "re-opening the transaction." The learned Judge by ordering a fresh account between the parties on the basis of the interest allowed by the Bengal Money-Lenders Act has in fact re-opened the transaction between the parties in this case. That being so, it appears to me that the learned Judge was bound to give effect to sec. 36 (2) (d) which provides that
if in the exercise of the powers conferred by sub-sec. (1) the Court re-opens a decree, the Court shall order the judgment-debtor to pay to the decree-holder, in such number of instalments as it may think fit, the whole amount of the new decree passed under cl. (a).
16. The result is that the appeal will be allowed and the matter remitted to the learned Judge for him to deal with it in accordance with the provisions of sec. 36 (2) (a) and (d) of the Bengal Money-Lenders Act of 1940.
17. The Appellants are entitled to the costs of the appeal.
Nasim Ali, J.
18. I agree with the order which my Lord the Chief Justice has made in this case. But I would like to add a few words.
19. A decree once dated and signed cannot be altered save as provided by sec. 152 or on review.
20. The application on which the learned Judge has made the order appealed against does not come either under sec. 38 or under sec. 36 (0) (a) (i) of the Bengal Money-Lenders Act. It was an application for review under sec. 36 (6) (a) (ii). On such an application for review the Court can exercise the powers conferred by sub-secs. (1) and (2) of sec. 36 of the Act. Under Or. 47, r. 8 of the CPC when an application for review is granted the Court is to re-hear the suit. In other words, the original decree is gone and a fresh decree is to be made. The effect of the learned Judge''s order is that he has granted the application for review, reheard the suit and has made a new decree. In view of the provisions of sec. 36 (2) of the Act, therefore, he should have made an order under cls. (a) and (d) of that section.
