P L D 1955 Dacca 110 (PLP)

IBRAHIM, J.--‑This appeal has been brought by the .defen dant No, 1 from a final decree in a suix for redemption. The facts are admitted and are these: On the 28th of March, 1327 B. S., Girish, the predecessor of the plaintiffs, borrowed R s. 450 from the defendant on a hand‑note On the 4th of Falgoon, 1331 B. S. Mathur, brother of Girish, took a further loan of Rs 800 on another hand‑note, and the land involved in this suit was then, made over to his possession on the condition that the usufruct would be appropriated against the interest on these loans. On the 23rd of December, 1943, the plaintiffs instituted this suit for redemption. They claimed khas possession and also mesne profits on the plea that the mortgage debt had been discharged by the usufruct, and that there was over‑payment to the extent of Rs. 1,

700. The defence contention, on the other hand, appears to have been that under the terms of the contract the usufruct was to be appropriated against the interest, that there was no question of over payment, and that the plaintiffs could not redeem without paying the principal. The learned Subordinate judge passed a preliminary decree to the effect that the plaintiffs were entitled to redeem the properties on payment of Rs. 2,500 (that is to say, double the amount of the original loan), less the amount of the usufruct received by the defendant, which was to be ascer tained by a Commissioner appointed for the purpose. A Commissioner was accordingly appointed, and, after consider ing his report the learned Subordinate judge came to the con clusion that not only the principal and interest amounting to Rs. 2,500 had been discharged but that there was over payment to the extent of Rs. 1,641‑5‑6 pies, and he passed the final decree directing that the plaintiffs shall get back posses sion 'and mesne profits amounting to Rs, 1,641‑5‑6 pies. The learned District judge has found that the over payment was to the extent of Rs. 416 only and modified the decree of the trial Court accordingly. In calculating the usufruct received by the defendant, the learned District Judge, did not adopt the principle on which the Commissioner and the tri 1 Court had based theif conclusions. He accepted the fing of the learned Subordinate judge that the land was roughly 9 kears and that the gross produce per annum was 72 maunds of paddy ; but he disagreed as to the method of determining the costs of cultivation. He thought that it was not necessary to go into details from year to year. He adopted the principle underlying the adhi system, namely, that half share of the produce is the net profit, and held that tile net profit derived by the defendant was 36 maunds of paddy per annum, being the half of the total yield. The plaintiffs have not preferred any‑ appeal or cross -objection from this decision. In calculating the usufruct received by the defendant, the learned Subordinate Judge excluded the years 1336 and 1347 B. S. on the ground that there had been a failure of crops.' This finding as to the failure of crops was not disturbed by the learned District judge ; but he did not exclude these two year's in calculating the receipts and has given no reason for not excluding them. The profit made by the defendant from the land must be calculated on the basis of actual produce. If there were no crops in 1336 and 1347 B: S., the defendant derived no profit in those years. The inclusion of the years 1336 and 1347 B. S. in the calcul ation of the receipts was obviously wrong. Mr. Sabita Ranjan Pal has made no attempt to support the decree, so far, as this point is concerned. It is admitted that if these two years are excluded, the over‑payment will come down to Rs. 200, and decree for refund must be reduced to this amount. The defendant's contention is that he is not liable for any refund. But he is confronted with the plea that he is precluded by the preliminary decree from raising this issue. It is true that the defendant did not prefer any appeal from the preli minary decree, and, as such, is precluded by section 97 of the Code of Civil Procedure from disputing its correctness in an appeal from the final decree. But the question is : was this question decided by the preliminary decree ? On behalf o: the plaintiffs it is contended that this question was decided by the preliminary decree. Mr. Debesh Chandra Bhattacharjee, on the other hand, contends that the preliminary decree did not decide this question. It is, therefore, necessary to decide, in the first place, whether this question was decided by the preliminary decree. The plea was taken by the defendant in the trial Court and an issue was framed. This was Issue No. 6 which ran thus: "Are the plaintiffs entitled to get any mesne profits from the defendants as claimed?" This issue was left over with the consent of both parties for decision at a subsequent stage of the proceedings ; but the ordering portion of the judgment was in these terms ; "That the suit be decreed on contest without costs in a preliminary form. The plaintiffs shall be entitled to redeem the mortgage properties on payment of Rs. 2,500 less the amount of the usufruct recehed by the defendant No. 1 from the 4th Falgun, 1331 B. S. This amount together with the mesne profits claimed shall be ascertained by a Commis sioner appointed for the purpose. The Commissioner should also ascertain the area and the boundaries of the suit lands If it is found that the entire mortgage‑debt has been fully paid off, the plaintiffs shall get khas possession in the sui; lands and mesne profits accordingly from the date of satisfaction. If it is found that the mortgage‑deed (sic) has not been fully satisfied, the claim for mesne profits shall be disallowed." On behalf of the plaintiffs stress is laid on the last two sentences in support of the contention that the question of mesne profits was decided by the trial Court. On the other hand Mr. Debesh Chandra Bhattacharjee argues that, taking the order as a whole and the surrounding circumstances into consideration. it should be held that though the learned Subordinate Judge said that the plaintiffs shall get mesne profits from the date of satisfaction, he actually meant that they would get such mesne profits subject to the decision of issue No. 6 which was to be taken up for decision after the Commissioner's 'report. It is significant that in deciding issue No 6, which was taken up after the Commissioner's report, the learned Subordinate judge first went into the question whether there had been any over‑payment, and then proceeded to decide whether, if there was any over‑payment, the plaintiff, were entitled to a refund. It could not have been necessary for him, nor could it be open to him; to go into this last question, if he had already decided by the preli minary decree that the plaintiffs were entitled to a refund if there was any surplus. It does not appear that any objection was raised by the plaintiffs that he was precluded by the preliminary decree from reopening the question of refund. Both the parties and the learned Subordinate judge, who passed the decree, appear to have taken this question of refund as not having been decided by the preliminary decree. In deciding the question of refund two questions are involved ; firstly, whether there was any surplus, and secondly, whether, if there was any surplus, the plaintiffs were entitled to get any refund. The first question had to be left over for decision after the Commissioner's report and it appears to me that both the parties agreed that instead of deciding the issue piecemeal, both parts of the question should be left over for' decision after the Commissioner's report. In interpreting the preliminary decree, the fact stated in the judgment that issue No. 6 was left over can and must be referred to, and the view urged by Mr. Debesh Chandra Bhattacharjee, which is consistent with it, must be accepted. It follows, therefore, that the defendant is not precluded by the preliminary decree from agitating this issue. Now it is to be seen whether the defendant is liable to refund the surplus. The provision for refund is laid down in section 76 (h) of the Transfer of Property Act, which is to the following effect: "When, during the continuance of the mortgage, the mortgagee takes possession of the mortgaged property, his receipts from the mortgaged property a shall .. . be debited against him in reduction of the amount (if any) from time to time due to him on account of interest . . . and, so far as such receipts exceed any interest due, in. reduction of discharge of the mortgage money ;the surplus if any, shall be paid to the mortgagor ;" This section is subject to section 77 of the Act, which lays down an exception. It is this: "Nothing in section 76 (h) . . . applies to cases where there is a contract between the mortgagee and the mortgagor that the receipts from the mortgaged property shall so long as the mortgagee is in possession of the property, be taken in lieu of interest on the principal money or, in lieu of such interest and defined portions of the principal." It is obvious that if there is a contract as mentioned in this section, no question of refund can arise. If this provision stood unaffected by other enactment, the defendant's plea . could not be resisted ; for in this case the land was made over to the defendant on the condition that the usufruct would be appropriated against the interest. But this provision must now be read subject to the Assam Money Lenders, (Amendment) Act, 1943, which says in section 1 (4): "The provisions of Transfer oP Property Act, 1882 . . . . shall, to the extent necessary to give effect to the provisions of this Act, be deemed to have been repealed," Section 5 of the amending Act, 1943, re‑enacts section 9 of the principal Act in these terms

"No money‑lender shall, in respect of any loan made before or after the commencement of this Act, recover, on account of interest and principal, whether through Court or otherwise or by way of usufruct of lands in usufructuary mortgages, a sum greater in aggregate than double the principal of the loan . . . . . ." "The exception laid down in section 77 of the Transfer of Property Act is now subject to the rule embodied in this section. The result is that even if there be a contract that the usufruct would be appropriated against the interest, or against the interest and part of the principal, the mortgagee is not entitled to recover more than double the principal of the loan. The limit prescribed by section 9 of the Assam Money Lenders Act cannot be given effect to without applying the rule of accounting and refund as laid down in section 76 (h) of the Transfer of Property Act, and to that extent section 77 of the Transfer of Property Act must be deemed to have been modified by section 9 of the Assam Money Lenders Act. Mr. Debesh Chandra Bhattacharjee argues that the section does not provide for any refund. This is true to the extent that if does not directly do so. But where it applies, the money‑lender cannot recover more than double the original loan, whether or not there was any contract that the usufruct would be set off against interest or interest and a specified portion of the principal. He cannot retain the excess in any case without violating this section. The position, as I see it, is that in cases governed by this section, the rule of accounting and refund laid down in section 76 (h) of the ,q Transfer of property Act will apply, whether there was or was not any such contract. He next contended that section 9 of the Assam Money Lenders Act cannot operate retrospectively to enable the plaintiffs to recover by way of refund the unsufructs which had already been set off against the interest according to the terms of the contract which held good until this section came into force. This argument is untenable. The object of the amendments is to give relief to the debtor in respect of all loans, including loans, secured or unsecured, made after the commencement of the Usurious Loans Act, 1918. The relief is (1) that in the case of loans made after the commencement of the Usurious Loans Act, the Court shall not decree interest at a rate higher than the maximum fixed by section 8 ; and (2) that the creditor shali not recover, on account of interest and principal whether through Court or otherwise, or by way of usufruct of land in usufructuary mortgages, a sum greater in aggregate than double the principal of the loan [subsec tion (1) of section 9]. Two principles are laid down (1) in cal culating t tie aggregate, "the amount already paid amicably or otherwise" shall be taken into account (explanation to section 9). And (2) In the case of a bond or any other instru ment executed for past liabilities the original sum actually advancec shall be considered as the principal of the loan. [Sub‑section (3) of section 9]. These provisions were made applicable to pending suits. It is clear from all this that the amounts set off before the commencement of the amending Act must be taken into account in determining whether the profit earned by the money‑lender has exceeded double the principal of the original loan. In the result, the amount to be refunded by the defendant is reduced to Rs. 200 ; the judgment and decree of the lower appellate Court are modified accordingly. The appeal succeeds to this extent ; but there will be no order as to costs of this Appeal in this Court. A. H. Appeal allowed.